Opinion of the European Economic and Social Committee on the  Green Paper on applicable law and jurisdiction in divorce matters (COM(2005) 82 final)
Date: 2005-09-28
Institutions: European Economic and Social Committee
Subjects: EU law, divorce, family law, judicial cooperation, jurisdiction, matrimonial law, mutual recognition principle, national law

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the ‘Green Paper on applicable law
and jurisdiction in divorce matters’

(COM(2005) 82 final)

(2006/C 24/08)

On 14 March 2005 the European Commission decided to consult the European Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community, on the Green Paper on
applicable law and jurisdiction in divorce matters.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 5 September 2005. The rapporteur was
Mr Retureau.

At its 420th plenary session, held on 28/29 September 2005 (meeting of 28 September), the European
Economic and Social Committee adopted the following opinion by 161 votes to four with eight absten-
tions.

1. Commentary on the Commission's proposal

annulment of canonical marriages — generally indissoluble
— for admissible grounds under canon law (1).

1.1
The Commission has published a Green Paper to launch
a consultation on jurisdiction, conflict of law and mutual recog-
nition in international divorce matters. Its proposed scope of
application would, however, be restricted to EU Member States
(It should be noted that the Green Paper on Succession and
wills adopts an approach that also includes persons and assets
in third countries).

— Bilateral agreements, for instance the agreement between
Finland and Sweden, which will remain in force between
these two countries. Some Member States have also entered
into agreements on applicable law in family matters with
third countries, especially with regard to the recognition of
foreign marriages and divorces.

A number of international instruments are directly or

1.2
indirectly relevant:

— The United Nations 1966 Covenant on economic, social
and cultural
rights and the European Conventions on
human rights, recognising the freedom to marry and the
requirement for full and free consent, the absence of which
would render the marriage voidable.

— The 1970 Hague Convention on the recognition of divorces
and legal separations. The following Member States are
parties
to the Convention: Cyprus, Denmark, Estonia,
Finland, Latvia, Lithuania and Luxembourg.

— The Brussels II Regulation No. 2201/2003 concerning juris-
diction and the recognition and enforcement of judgements
in matrimonial matters and the matters of parental respon-
sibility, which is not applicable in Denmark, and which
replaces the aforementioned Hague Convention for all EU
Member States except Denmark.

— The Concordats between the Vatican and Portugal, Spain,
Malta and Italy respectively on canonical marriages, their
dissolution, and the recognition of the decisions of the
Vatican Tribunals (The Roman Rota's jurisdiction over the

— The ‘opt in’ and ‘opt out’ protocols annexed to the Treaties,
which exclude Denmark and grant the United Kingdom and
Ireland the possibility to opt out of civil law legislation.

It would be pointless to deny the complexity of an issue
1.3
that involves particularities specific to different religions and
cultures that are deeply embedded in the collective conscious-
ness but which have also undergone, as is the case for family
law in general, profound changes over several decades. Never-
theless, within the European legal area and common area of
freedom, and bearing in mind the free movement of persons,
the European legislative authorities cannot ignore the fact that
a significant percentage of marriages end in divorce, and that a
growing number of them have an international character.

(1) It should be noted that, in December 2004, the Spanish parliament
deliberated draft legislation amending national law on marriage and
divorce. Although strongly opposed by the Church,
same-sex
marriages have recently been approved in Spain (already legal in a
number of EU Member States). In France, a civil contract may be
signed between two people who cannot marry legally: a PACS –
civil solidarity pact – is registered by a court and is a kind of substi-
tute for marriage. Whether it be regarded as an institution and/or
contract,
limited to two
people of legal age and incest is still prohibited; it should be consid-
ered whether termination of a civil agreement such as the French
PACS should be included in the draft
legislation on divorce
proposed by the Green Paper or whether it should merely be
governed by law on contractual obligations.

the marriage or quasi-marriage is still

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Ongoing developments in national

1.4
family law stem
mainly from the principles of democracy (parliament's right to
enact laws), individual freedom and equality, and are matters of
public policy at Community level and in all Member States.
Thus there is a trend towards contractualisation in family law
(same-sex marriages or civil contracts, divorce by consent,
succession agreements, etc.).

1.5
These developments seem irreversible although their
pace may vary. The cultural prevalence of religious ideas which
may be deep rooted appears to affect the pace and substance of
changes which may clash with ideas and rules that stem from
long traditions, as well as with legal and social concepts and
principles that reflect them.

At all events the Member States' national

1.6
laws vary
considerably in divorce and legal separation matters and with
regard to the conditions for annulling a marriage and the
consequences arising therefrom; one Member State does not
recognise divorce (Malta). For this reason, the Green Paper
(wisely) does not propose to harmonise substantive law.

1.7
Instead it recommends that legislation in divorce matters
with an international (European) dimension be developed in
two directions:

— jurisdiction (establishing the court with jurisdiction and
ensuring recognition of its decisions in all Member States);

— choice of law to be applied by the court of jurisdiction.

The provisions of

1.8
the Brussels II Regulation on the
choice of national jurisdiction and the mutual recognition of
court decisions without exequatur are already applicable in
divorce matters. The question is whether they suffice in their
present form, and to what extent a State would be able to set
domestic public policy provisions against the enforcement of a
ruling delivered by a court of jurisdiction in another Member
State applying different substantive law to that specific case
(not necessarily its national ordinary law).

the

One major problem is

1.9
substantial differences
between domestic rules on the admissibility of divorce applica-
tions with an international dimension. Cases might arise that
were not admissible in any court in a given Member State.
Such a situation would deprive the parties of their right of
access to a court, which contravenes a fundamental right and is
therefore unacceptable.

1.10
guarantee access to a court — but what form should it take?

A rule on the attribution of jurisdiction is required to

1.11
The applicable law sometimes facilitates procedures,
but it may also prolong and complicate them. It may impose
restrictions on the grounds or conditions that may be invoked.
If lex fori is to be the only applicable law then this could result
in a ‘rush to court’. The initiating petitioner could choose the
court and national law most favourable to his/her claim, while
the other party might consider his/her rights to be vitiated by a
system of law which did not necessarily satisfy his/her expecta-
tions if, for example, it had little or no connection with the
matrimonial law or nationality of the spouses.

1.12
Should it be permissible to transfer the case to another
jurisdiction if the respondent alleges that there are stronger or
equally valid factors connecting the case with another court, or
if there are few or no objective factors connecting the case
with the court first petitioned and the substantive provisions it
applies to such a case?

1.13
The transfer option should be allowed (but avoiding a
case being referred back and forth between different jurisdic-
tions) and should be decided within a reasonable timeframe
(urgency/procedure) to prevent tactics designed to postpone an
examination of the facts. The parties are entitled to a final deci-
sion within a reasonable period of time even in contentious
divorce cases.

The national court will apply either

1.14
its domestic
common law or national rules of international private law. The
question (not broached in the Green Paper) of applying the
rules of a third State (the law of the spouses' nationality for
instance) is nevertheless important in cases where one or both
spouses are third-country nationals — a common enough
occurrence in the European Union.

1.15
The Committee welcomes the Green Paper's guidelines
for future work and would recommend preventing the transfer
of legal proceedings to a third country if one of the spouses is
a Member State national, irrespective of the law of the marriage
contract.

In addition to the recognition of divorces, the question
1.16
of recognising annulments and legal separation should also be
considered. National systems of law differ regarding the condi-
tions for annulments and their consequences (especially for
putative marriages). Moreover, even where a national
legal
system does not provide for divorce, all Member States must
recognise on their territory not just the validity of a divorce
obtained in another Member State but also all the legal, prop-
erty and status consequences thereof.

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1.17
The Hague Convention criteria for attributing jurisdic-
tion are in order of importance: the place of habitual residence
(domicile in common law) of the petitioner, or the continuous
residence of the petitioner for at least one year in the country
where he/she institutes proceedings (2), the last place where the
spouses habitually resided together prior to the institution of
proceedings, and the nationality of either or both of
the
spouses.

Regulation 2201/2003 (8th Recital) provides that ‘As
1.18
regards judgements on divorce,
legal separation or marriage
annulment, this Regulation should apply only to the dissolution
of matrimonial ties and should not deal with issues such as the
grounds for divorce, property consequences of the marriage or
any other ancillary measures.’ Nevertheless, it cannot be denied
that the financial and other consequences of divorce may vary
according to which court has jurisdiction or which law applies,
and that couples will be able to take this into account when
they choose a court.

1.19
Furthermore, national courts' final judgements should
be automatically recognised throughout the European Union
without
the need for any further validation procedure or
appeal against enforcement (3). The certificate issued to facilitate
enforcement should not, therefore, be subject to appeal.

1.20
General jurisdiction lies with the territory (the Member
State or part of the Member State in the case of the United
Kingdom, where different rules apply in England and Wales,
Scotland, Northern Ireland, and Gibraltar). The Regulation takes
up the Hague criteria in practically the same order and adds a
further criterion: in the event of a joint application, either of
the spouses' habitual places of residence. With regard to nation-
ality, it should be the same for both spouses if the application
is filed in the country of origin, irrespective of the actual place
of residence or domicile of either spouse. The required length
of residence is reduced to six months if the petitioner's nation-
ality is that of the State of residence.

jurisdiction, Article 7(2)
1.21 With regard to residual
provides that a petitioner who is a national of a Member State
may file his/her petition in his/her Member State of residence
in accordance with the rules of jurisdiction applicable in that
State if his/her spouse is a national of a third State or does not
have his/her habitual residence (domicile in common law) in a
Member State. However,
this could give rise to a positive
conflict of jurisdiction with a court in a third country peti-
tioned by the other spouse. Furthermore, if no Member State
court was competent, but that of a third country was, and one
or both of the ex-spouses were nationals of a Member State or
had established their habitual residence there and wished to
have the foreign judgement recognised by all
the Member
in their respective countries of
States or at

the very least

nationality or residence, they would be subject in these coun-
tries to the law applicable to foreign judgements or the mutual
recognition provisions of any international agreements: should
for nationals of a
Brussels II be reviewed in this respect
Member State?

Thus the Community Regulation under consideration
1.22
lays down criteria for attributing jurisdiction that are more
numerous and explicit
the Hague
Convention, and the criteria set out in the Regulation should
therefore form the basis for the criteria to be laid down in the
specific regulation on divorce (e.g. reference to these provisions
and to those on mutual recognition of judgements).

than the provisions of

1.23
However, neither the Hague Convention nor the Brus-
sels II Regulation lay down provisions for the law applicable to
divorce; the Regulation's scope of application is restricted to
divorce, legal separation and annulment proper, and it does not
address the grounds for dissolving a marriage or the conse-
quences thereof. The latter remain within the scope of the
applicable national law.

1.24
It should be noted, for instance, that approximately
15 % of applications for divorce, legal separation, or annulment
in Germany have an international dimension. The number of
divorces with a European dimension in the Member States is
not known.

2. The Committee's proposals and additional considera-

tions

At present,

2.1
the conflict-of-law rules applied are the
national rules of the Member State of the court petitioned. As a
result, the law applied in identical circumstances may differ
considerably, depending on the country where proceedings
have been instituted.

The Green Paper gives a number of well-chosen exam-
2.2
ples on this subject. Some of these examples concern jurisdic-
tion — cases where negative conflicts and consequent denial of
rights could arise — whereas others deal with the diversity of
the approaches adopted. The outcome might fail to meet the
expectations of either or both of the spouses. In any case, this
leads to a certain degree of
legal uncertainty and lack of
predictability, and in some cases, could result in ‘forum shop-
ping’ and ‘a rush to court’ due to the litis pendens rule of the
Brussels II Regulation (the first forum before which a case is
brought will have jurisdiction provided there is a connecting
factor).

(2) In some countries six months' continuous residence is sufficient.
(3) Except any reservation on grounds of public policy, which should

be interpreted to the letter.

2.3
The problem arises mainly when the spouses share
neither nationality nor residence, or if they have the same
nationality but reside in States of which they are not nationals.

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in such situations,

The Committee agrees that,

2.4
the
parties should be granted a degree of latitude in choosing the
applicable law. Alternatively, respondents should be allowed to
invoke their expectations regarding applicable law or request
that the case be transferred to another jurisdiction that has the
most objective links with the marriage. Where the petitioner
chooses a jurisdiction and the ordinary national
law that it
applies, and where the defendant chooses another competent
jurisdiction or another applicable law, the preliminary ruling
on jurisdiction or relevant law should be given by the court of
first
the
instance before which the petitioner first brought
proceedings and be dealt with as a matter of urgency.

In cases where the only connecting factor is the nation-
2.5
ality of one of the parties, the regulation requires jurisdiction to
be assigned to the courts of the country of habitual residence,
where the applicable law might not, however, correspond to
the parties' shared expectations (for instance, they might wish
to apply the law of a country which has closer links with the
marriage).

2.6
The parties' freedom of choice should therefore play a
role, and the rules should not be based exclusively on mechan-
ical application of connecting factors. For instance, a choice
between the law of nationality and the lex fori could be
allowed, but without the right of transfer.

Regarding canonical annulments granted by ecclesias-
2.7
tical courts, some Member States have declared that
they
submit such decisions for recognition to their civil courts on
the basis of a concordat or convention with the Holy See (Italy,
Portugal, Spain, Malta (4)). Canonical annulments could come
into conflict with the domestic laws of other Member States
because these countries do not recognise the canonical grounds
for annulment, or for procedural reasons (5).

2.9
Although the number of cases of negative conflict of
jurisdiction may be relatively low, the Committee considers
that a Community initiative is justified if such instances would
result in the violation of a fundamental right, i.e. the right of
access to a court with jurisdiction to grant and settle divorce,
legal separation or annulment.

2.10
This should therefore lead to an acknowledgement of
the need to harmonise rules on conflict of law and jurisdiction
in order to prevent such denial of a right.

2.11
However, these rules should include a public policy
reservation with regard to the recognition or exequatur of a
court judgement with a European interest delivered in a third
country if that judgement adversely affects a fundamental right
of one of
the parties recognised under European law or
breaches other imperative provisions of domestic public policy
that the court is automatically bound to invoke.

Nor should Community law require all Member States
2.12
to recognise a divorce, annulment or legal separation granted
in a third country and concerning residents of the Union who
do not have the nationality of a Member State without prior
exequatur procedure if another Member State has already
accepted such a judgement on the basis of a bilateral agreement
with that third country (6).

2.13
The Committee believes that prorogation of jurisdic-
tion should be allowed in cases of joint petitions for divorce,
provided that there is a link with the court of choice. A notarial
act could be required for the joint application for prorogation.

2.8 Where such annulments come into procedural or
substantive conflict with domestic public policy or with the
European Convention on the Protection of Human Rights and
Fundamental Freedoms, the State where proceedings have been
instituted must refuse exequatur or recognition of the ecclesias-
tical decision. The petitioner should then be able to institute
standard civil annulment, separation or divorce proceedings.
Otherwise, the only remedy available would be to appeal to the
European Court of Human Rights in Strasbourg, which would
unduly prolong procedures.

(4) Poland has not reported its concordat with the Vatican.
(5) See the European Court of Human Rights, Application No
30882/96, (20 July 2001) Pellegrini v. Italy: the ECHR overturned
the Italian Court's ruling enforcing the decision delivered by the
court of the Roman Rota on appeal on the grounds that the latter
had violated the right to adversarial proceedings.

2.14
The Committee considers that a comparative country-
by-country study should be carried out into the actual conse-
quences of divorce, as regards parental rights, custody of
minors and assets; these factors should not be overlooked if
there is a possibility of a ‘rush to court’. In any case, it would
be difficult to do as the Green Paper does and address the issue
of divorce without any consideration of the family and prop-
erty consequences thereof, which can differ from one country
to another depending on the applicable law or the prevailing
case law of national courts (e.g.
in the area of custody and
parental responsibility).

(6) Even if this goes without saying - as it is a question of a regulation
applicable to the court judgments of all Member States - it is best
for it to be spelt out in order to avoid any problems of interpreta-
tion.

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2.15
If they have not already done so, the Member States
should be asked to consider all available opportunities for
introducing alternative methods of conflict resolution, such as
mediation (7), in the area of divorce, separation and annulment
with a European dimension. This would facilitate access to
justice, and would help shorten the proceedings for the parties
involved.

2.16
The Committee is keeping an open mind on an issue
that is important for citizens and their mobility; it will follow

the result of the consultations undertaken by the Commission
and any more specific proposals for regulations that may
emerge afterwards; a revamp of the New Regulation Brussels II
or a specific divorce regulation are possibilities. The Committee
would also like to know more precisely, broken down by
country, the number of applications for divorce with a Com-
munity dimension, the number of cases of negative conflicts of
jurisdiction and other relevant information. In this way it will
be able to examine more thoroughly the problems surrounding
any future proposals for legislation on the competence and
applicable law in divorce matters.

Brussels, 28 September 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(7) Green Paper COM(2002) 196 final on alternative dispute resolution

in civil and commercial law.