Proposal for a Council Regulation (EU) implementing enhanced cooperation in the area of the law applicable to divorce and legal separation {COM(2010) 104 final}
Date: 2010-03-24
Institutions: European Commission
Subjects: divorce, judicial cooperation in civil matters in the EU, matrimonial law

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EUROPEAN COMMISSION 

Brussels, 24.3.2010 
COM(2010) 105 final 

2010/0067 (CNS) 

Proposal for a 

COUNCIL REGULATION (EU) 

implementing enhanced cooperation in the area of the law applicable to divorce and 
legal separation  

{COM(2010) 104 final}

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EXPLANATORY MEMORANDUM 

1. 

INTRODUCTION  

1.1 

Background 

On 17 July 2006 the Commission adopted, on the basis of Article 61(c) and Article 67(1) of 
the  Treaty  establishing  the  European  Community  (now  Article  81(3)  of  the  Treaty  on  the 
Functioning  of  the  European  Union),  a  proposal1  for  a  Council  Regulation  amending 
Regulation  (EC)  No  2201/20032  as  regards  jurisdiction  and  introducing  rules  concerning 
applicable law in matrimonial matters ('Rome III'). The aim was that the Council should adopt 
the  proposal  by  unanimity,  after  consulting  the  European  Parliament.  The  European 
Parliament gave its opinion on the proposal on 21 October 20083.  

The  Commission's  proposal  was  discussed  in  the  Committee  on  Civil  Law  Matters  (Rome 
III), beginning in October 2006. However, unanimity could not be reached on all the proposed 
solutions regarding applicable law rules in the Regulation or on the proposed derogations. On 
5 and 6 June 2008 the Council accordingly took note of the lack of the unanimity needed to 
go  ahead  with  the  Rome  III  Regulation,  and  of  the  existence  of  insurmountable  difficulties 
that  made  unanimity  impossible  both  then  and  in  the  near  future.  It  observed  that  the 
objectives  of  Rome  III  could  not  be  attained  within  a  reasonable  timescale  by  applying  the 
relevant Treaty provisions. 

On  25  July  2008  the  Council  noted  that  at  least  eight  Member  States  intended  to  ask  the 
Commission  to  present  a  proposal  for  enhanced  cooperation  and  that  other  Member  States 
might take part once the Commission had made its proposal. It considered that only an official 
request to the Commission by those Member States would elicit a Commission proposal that 
would  enable  each  delegation  to  make  up  its  own  mind  whether  enhanced  cooperation  was 
appropriate  and  whether  to  participate  in  it.  It  concluded  that  any  request  by  at  least  eight 
Member States to the Commission to present a proposal for enhanced cooperation would not 
prejudice the rest of the procedure and, in particular, the authorisation the Council would be 
asked to grant.  

On 28 July and 12 August 2008 and 12 January 2009, a total of ten Member States4 addressed 
a  request  to  the  Commission  indicating  that  they  wished  to  establish  enhanced  cooperation 
between  themselves  in  the  area  of  applicable  law  in  matrimonial  matters  and  asking  the 
Commission to submit a proposal to the Council to that effect. 

The proposal for a Council Decision authorising enhanced cooperation on the law applicable 
to divorce and legal separation and this proposal for a Council Regulation implementing such 
enhanced  cooperation,  which  the  Commission  has  adopted  at  the  same  time,  are  the 
Commission's response to the request by the ten Member States, which are hereinafter called 
'the  participating  Member  States'.  The  proposal  for  a  Council  Decision  contains  a  detailed 

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COM(2006) 399. 
Council  Regulation  (EC)  No  2201/2003  of  27  November  2003  concerning  jurisdiction  and  the 
recognition  and  enforcement  of  judgments  in  matrimonial  matters  and  the  matters  of  parental 
responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338, 23.12.2003, p. 1. 
OJ C 15 E, 21.1.2010, p. 128. 
Bulgaria, Greece, Spain, France, Italy, Luxembourg, Hungary, Austria, Romania and Slovenia. 

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assessment of the legal conditions governing, and the appropriateness of, the introduction of 
enhanced cooperation in the area of the law applicable to divorce and legal separation. 

2. 

GROUNDS FOR AND OBJECTIVES OF THE PROPOSAL 

2.1 

Strengthening legal certainty and predictability  

In  matrimonial  proceedings  of  an  international  nature,  the  fact  that  national  laws  are  very 
different,  especially  as  regards  conflict-of-law  rules,  leads  to  much  legal  uncertainty.  The 
great  differences  between  and  the  complexity  of  national  conflict-of-law  rules  make  it  very 
difficult  for  international  couples  to  predict  which  law  will  apply  to  their  divorce  or  legal 
separation proceeding. The participating Member States do not provide any possibility for the 
spouses to choose the applicable law in such proceedings. This may lead to the application of 
a law with which the spouses are only tenuously connected and to an outcome that does not 
meet their legitimate expectations. Nor does it encourage amicable solutions.  

Having due regard to the relevant parts of the explanatory memorandum to the Commission's 
proposal  for  a  Regulation  of  17  July  2006  (Rome  III),  the  purpose  of  this  proposal  for  a 
Regulation is to introduce a clear legal framework in the European Union, covering applicable 
law  rules  in  the  area  of  divorce  and  legal  separation  and  allowing  the  parties  a  degree  of 
freedom  of  choice  of  applicable  law.  Unlike  in  the  Commission's  original  proposal,  the 
enhanced  cooperation  measure  concerns  only  applicable  law  and  not  jurisdiction,  the  aim 
being  to  avoid  affecting  Union  law,  namely  Regulation  (EC)  No  2201/2003,  which  the 
original proposal was intended to amend. Despite being among the provisions inserted by the 
Committee  on  Civil  Law  Matters  (Rome  III)5,  Article  20e-1  has  not  been  included  in  this 
proposal for a Regulation. That article contains in essence a rule on jurisdiction and is closely 
bound up with Article 7a on forum necessitatis, which has likewise not been included as it, 
too, dealt with jurisdiction. 

2.2 

Increasing flexibility by introducing some party autonomy 

There is currently very little party autonomy in matrimonial matters. The proposal renders the 
legal framework more flexible by introducing a limited possibility for the spouses to choose 
another law as the law applicable to their divorce or legal separation proceeding. To avoid the 
application  of  laws  with  which  they  have  little  or  no  connection,  the  spouses'  choice  is 
confined to laws with which the marriage has a close link.  

It  will  be  particularly  useful  to  allow  spouses  to  come  to  an  agreement  on  these  matters  in 
cases  of  divorce  by  mutual  consent.  This  will  act  as  a  strong  incentive  for  the  couples 
concerned to deal in advance with the consequences of possible marital breakdown and will 
encourage amicable divorce, which is crucial in the case of couples with children. The Rome 
III  Regulation  will  also  help  third-country  nationals  to  integrate  by  affording  them  the 
opportunity to substitute the law of their new residence for their national law.  

Special safeguards are introduced to ensure that the spouses are aware of the consequences of 
their choice and to protect the weaker spouse. 

5 

See Council of the European Union document 9712/08. 

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2.3 

Preventing a 'rush to court' by one spouse 

Finally, the proposal addresses the problem of a 'rush to court' by one spouse, i.e. where one 
of  the  spouses  applies  for  divorce  before  the  other  one  does  in  order  to  ensure  that  the 
proceeding is governed by a given law which he or she regards as more favourable to his or 
her own interests. This may lead to the application of a law with which the other spouse has 
little  connection  or  which  fails  to  take  into  account  his  or  her  interests.  It  further  renders 
reconciliation efforts difficult and leaves little time for mediation.  

The introduction of harmonised conflict-of-law rules should greatly reduce the risk of a rush 
to court, since any court seised in one of the participating Member States would apply the law 
designated on the basis of common rules. 

In the absence of choice, the applicable law would be determined on the basis of a scale of 
connecting  factors  giving  priority  to  the  law  of  the  spouses'  habitual  residence,  which  will 
ensure  that  the  divorce  or  legal  separation  proceeding  is  governed  by  a  legal  system  with 
which  the  couple  has  a  close  connection.  This  will  greatly  increase  legal  certainty  and 
predictability both for the spouses concerned and for practitioners.  

The  rule  on  the  law  applicable  in  the  absence  of  choice  is  intended  to  protect  the  weaker 
spouse by giving priority to the application of the law of the family's habitual residence prior 
to separation, irrespective of the court seised by one or other spouse. It would therefore enable 
spouses easily to predict which law will apply to their divorce or legal separation proceeding. 

3. 

CONSULTATION OF INTERESTED PARTIES AND ASSESSMENT OF THE IMPACT OF THE 
ENHANCED COOPERATION MEASURE 

Publication  of  the  Commission's  July  2006  proposal  was  preceded  by  a  wide-ranging 
consultation  of  interested  parties.  The  latest  version  resulting  from  the  negotiations  in  the 
Council,  which  the  Commission  partly  reproduces  in  its  proposal,  does  not  differ  markedly 
from  the  Commission's  July  2006  proposal.  This  version  retains  the  same  solutions  of 
principle for the law applicable to divorce and legal separation proceedings (e.g. the choice of 
applicable  law,  the  spouses'  habitual  residence  as  principal  connecting  factor,  the  public 
policy exception, etc.). 

The Commission carried out an impact assessment which it attached to its original July 2006 
proposal.  This  remains  relevant  to  the  question  of  the  applicable  law,  and  reference  will  be 
made to it here6. The present Commission proposal implements enhanced cooperation in the 
area  of  the  law  applicable  to  divorce  and  legal  separation.  Under  the  second  paragraph  of 
Article 20 of the Treaty on European Union, the enhanced cooperation procedure may be used 
only  as  a  last  resort.  Thus,  the  Commission  may  propose  enhanced  cooperation,  and  the 
Council may give its agreement, only on matters which the Council has already dealt with and 
on which it has concluded that no other solution can be found, inasmuch as the 'objectives of 
such cooperation cannot be attained within a reasonable period by the Union as a whole'. It 
follows that the Commission can change neither the area of the enhanced cooperation – in this 
case,  the  law  applicable  to  divorce  and  legal  separation  –  nor  the  fundamental  rules  of  the 
instrument as set out in the latest version of the text negotiated in the Council. Moreover, the 
content  of  the  Commission's  proposal  implementing  enhanced  cooperation  is  limited  by  the 

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SEC(2006) 949. 

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scope  specified  in  the  participating  Member  States'  requests  for  enhanced  cooperation,  i.e. 
applicable law in matrimonial matters. In the present case, a new impact assessment covering 
the same subject area does not therefore appear appropriate. 

4. 

LEGAL ELEMENTS OF THE PROPOSAL 

4.1 

Legal basis 

The  legal  basis  for  this  proposal  is  Article  81(3)  of  the  Treaty  on  the  Functioning  of  the 
European  Union,  which  confers  on  the  Council  the  power  to  adopt  measures  concerning 
family law having cross-border implications after consulting the European Parliament.  

The  proposal  concerns  the  law  applicable  to  divorce  and  legal  separation  These  are  matters 
governed  by  family  law.  The  proposal's  rules  on  the  applicable  law  come  into  play  only  in 
international  situations,  that  is  to  say,  for  example,  those  where  the  spouses  are  of  different 
nationalities or live in different Member States or in a Member State of which at least one of 
them  is  not  a  national.  The  cross-border  requirement  in  Article  81(3)  of  the  Treaty  on  the 
Functioning of the European Union is consequently fulfilled. 

4.2 

Principle of subsidiarity 

The  objectives  of  the  proposal  can  be  met  only  at  Union  level  by  way  of  common  rules 
governing  applicable  law,  if  necessary  through  enhanced  cooperation.  These  conflict  rules 
must  be  identical  if  the  proposal's  objective  of  increasing  legal  certainty,  predictability  and 
flexibility  for  citizens  is  to  be  attained.  One-sided  action  by  the  Member  States  would 
therefore  run  counter  to  these  objectives.  There  is  no  international  convention  in  force 
between  the  Member  States  on  the  question  of  applicable  law  in  matrimonial  matters.  The 
public  consultation  and  the  impact  assessment  carried  out  at  the  time  of  the  Commission's 
July 2006 proposal have demonstrated that the scale of the problems addressed by the present 
proposal is significant and concerns tens of thousands of citizens each year. Given the nature 
and the scale of the problem, the objectives can be achieved only at Union level. 

4.3 

Principle of proportionality 

The proposal complies with the principle of proportionality in that it is strictly limited to what 
is  necessary  to  achieve  its  objectives.  It  will  not  entail  any  additional  financial  or 
administrative burdens on citizens and only a very limited additional burden on the national 
authorities concerned. 

4.4 

Choice of instrument 

The nature and objective of the proposal are such that an act in the form of a Regulation is 
required.  The  need  for  legal  certainty  and  predictability  calls  for  clear,  uniform  rules.  The 
proposed  rules  on  applicable  law  are  detailed  and  precise  and  require  no  transposal  into 
national  law.  To  leave  the  participating  Member  States  any  room  for  discretion  in 
implementing these rules would jeopardise the objectives of legal certainty and predictability. 

4.5 

Position of the United Kingdom, Ireland and Denmark 

The United Kingdom and Ireland do not participate in cooperation in matters covered by Part 
Three, Title V, of the Treaty on the Functioning of the European Union unless, in accordance 
with Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of 

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the  area  of  freedom,  security  and  justice  annexed  to  the  Treaty  on  European  Union  and  the 
Treaty on the Functioning of the European Union, they give notice of their wish to participate. 
By  virtue  of  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark  annexed  to  the 
Treaty  on  European  Union  and  the  Treaty  on  the  Functioning  of  the  European  Union, 
Denmark  is  not  participating  in  the  adoption  of  the  proposed  Regulation  and  it  is  neither 
bound by it nor subject to its application. 

5. 

BUDGETARY  IMPACT,  SIMPLIFICATION  AND  CONSISTENCY  WITH  OTHER  UNION 
POLICIES 

5.1 

Budgetary impact 

The proposal will have no impact on the Union budget. 

5.2 

Simplification 

The proposal will bring about a simplification of administrative procedures both for citizens 
and  for  practitioners.  In  particular,  the  harmonisation  of  conflict-of-law  rules  will 
considerably  simplify  procedures  by  enabling  them  to  determine  the  applicable  law  on  the 
basis  of  a  single  set  of  rules  replacing  the  existing  national  conflict-of-law  rules  of  the 
participating Member States. 

5.3 

Consistency with other Union policies and with the Union's objectives 

The  proposal  respects  the  fundamental  rights  and  observes  the  principles  recognised,  in 
particular, by the Charter of Fundamental Rights of the European Union as general principles 
of Union law.  

6. 

COMMENTS ON THE ARTICLES 

Article 1 

The  proposed  Regulation  applies  to  all  situations  where  there  is  a  conflict  of  laws,  i.e. 
situations in which there are aspects of the case which take it outside the domestic social life 
of  one  country  and  which  may  involve  several  legal  systems.  It  comes  into  play,  therefore, 
only in international situations, such as, for example, those where the spouses are of different 
nationalities or live in different Member States or in a Member State of which at least one of 
them is not a national ('international couples'). 

The proposed rules on applicable law are limited to divorce and legal separation and do not 
apply to marriage annulment proceedings, for which both the autonomy of the parties and the 
choice of laws other than that of the court seised are deemed inappropriate. As far as rules on 
jurisdiction are concerned, marriage annulment, like divorce and legal separation, is covered 
by Regulation (EC) No 2201/2003.  

Article 2 

By virtue of Article 2, this is a universal Regulation, meaning that its uniform conflict rules 
can designate the law of a participating Member State, the law of a non-participating Member 
State, or the law of a State which is not a member of the European Union. This is a firmly-
rooted principle of the law concerning conflict of laws which already exists in the 1980 Rome 
Convention, the conventions concluded within the framework of the Hague Conference, and 

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the  national  conflict  rules  of  the  participating  Member  States.  Safeguard  clauses  have  been 
introduced to prevent the application of foreign laws on divorce or legal separation which are 
incompatible  with  the  common  values  of  the  European  Union.  Where  the  law  of  another 
Member State is designated, the European Judicial Network in civil and commercial matters 
can play a part in assisting the courts with regard to the content of foreign law.  

Article 3 

The  vast  majority  of  national  conflict-of-law  rules  provide  for  only  one  solution  in  a  given 
situation.  The  proposal  seeks  to  afford  the  spouses  greater  flexibility  by  allowing  them  to 
choose  the  law  applicable  to  divorce  and  legal  separation.  The  only  laws  which  may  be 
chosen are those with which the spouses have a close connection by virtue of their habitual 
residence  or  their  last  common  habitual  residence  if  one  of  them  still  lives  there,  the 
nationality of one of the spouses, and the lex fori.  

The  same  conflict-of-law  rules  should  apply  to  legal  separation  and  to  divorce,  since  legal 
separation is in many cases a prerequisite for divorce. The participating Member States that 
recognise  legal  separation  apply  the  same  conflict-of-law  rules  to  divorce  and  legal 
separation. 

This increased party autonomy will improve legal certainty and predictability for the spouses. 
Certain  formal  requirements  need  to  be  respected  in  order  to  ensure  that  both  spouses  are 
aware of the consequences of their choice and to protect the weaker spouse. The Commission 
shares the European Parliament's opinion that it is necessary to prevent the parties' choice of 
applicable law from leading to application of a law that is contrary to fundamental rights and 
Union  law.  The  text  therefore  limits  the  parties'  choice  to  foreign  laws  on  divorce  or  legal 
separation which are compatible with the common values of the European Union.  

Article 4 

In the absence of choice by the spouses, the applicable law would be determined on the basis 
of a scale of successive connecting factors, based in the first place on the habitual residence of 
the spouses. This uniform rule will ensure legal certainty and predictability. The introduction 
of  harmonised  conflict-of-laws  rules  should  considerably  reduce  the  risk  of  a  rush  to  court, 
since  any  court  seised  in  the  participating  Member  States  would  apply  the  same  law 
designated on the basis of common rules.  

The fact that the rule is based in the first place on the habitual residence of the spouses and, 
failing that, on their last habitual residence if one of them still lives there will result in the law 
of the court seised being applied in the vast majority of cases (but not always, as in the case 
where  one  of  the  spouses  returns  to  his  or  her  home  country  and  seises  a  court  there  in 
accordance with the rules on jurisdiction laid down by Regulation (EC) No 2201/2003). Cases 
in which a foreign law is applicable will therefore be very few in number. 

Article 5 

This provision contains a rule intended to avoid discrimination. In certain situations where the 
applicable  law  makes  no  provision  for  divorce  or  does  not  grant  one  of  the  spouses  equal 
access  to  divorce  or  legal  separation  on  grounds  of  their  sex,  the  law  of  the  court  seised 
should apply.  

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Article 6 

To  allow  renvoi  would  jeopardise  the  objective  of  legal  certainty.  Designating  a  law  under 
uniform conflict-of-law rules consequently means designating the substantive rules of that law 
and not its rules of private international law. 

Article 7 

The mechanism of the public policy exception allows the court to disregard the rules of the 
foreign law designated by the conflict-of-law rule where the application of the foreign law in 
a given case would be contrary to the public policy of the State of the court seised. The word 
"manifestly" means that use of the public policy exception must be exceptional.  

Article 8 

Where a State consists of several territorial units each with its own substantive law of divorce 
and  legal  separation,  this  Regulation  must  also  apply  to  conflicts  of  laws  between  those 
territorial  units  so  as  to  ensure  legal  certainty,  foreseeability  and  the  uniform  application  of 
European Union rules to all conflict situations. 

Article 9 

This provision ensures transparency for citizens of the rules applicable to marriage contracts 
in  the  participating  Member  States.  The  Commission  will  make  this  information  publicly 
available on the website of the European Judicial Network in civil and commercial matters. 

Article 10 

This article relates to the instrument's temporal scope. 

Article 11 

The  proposed  provisions  seek  to  strike  an  appropriate  balance  between,  on  the  one  hand, 
compliance with the international obligations of the participating Member States and, on the 
other,  the  objective  of  the  construction  of  a  genuine  European  area  of  justice.  Paragraph  1 
permits  the  participating  Member  States  to  continue  to  apply  the  conflict-of-law  rules 
contained  in  the  bilateral  or  multilateral  agreements  to  which  they  are  party  when  the 
Regulation is adopted. However, the coexistence of two parallel systems – the application by 
some participating Member States of the rules of the agreements they have ratified, and the 
application by the other participating Member States of the rules of the proposed Regulation – 
would run counter to the proper functioning of the European area of justice. 

Articles 12 and 13 

The  articles  on  the  instrument's  revision,  entry  into  force  and  application  are  standard 
provisions. 

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2010/0067 (CNS) 

Proposal for a 

COUNCIL REGULATION (EU) 

implementing enhanced cooperation in the area of the law applicable to divorce and 
legal separation  

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 81(3) thereof, 

Having regard to Council Decision […] of […] authorising enhanced cooperation in the area 
of the law applicable to divorce and legal separation7, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Parliament8, 

Having regard to the opinion of the European Economic and Social Committee9, 

Acting in accordance with a special legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

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8 
9 

The  Union  has  set  itself  the  objective  of  maintaining  and  developing  an  area  of 
freedom, security and justice, in which the free movement of persons is assured. For 
the gradual establishment of such an area, the Union must adopt measures relating to 
judicial cooperation in civil matters having cross-border implications. 

Pursuant to Article 81(3) of the Treaty on the Functioning of the European Union, the 
Council is to adopt measures concerning family law with cross-border implications. 

On  14  March  2005  the  Commission  adopted  a  Green  Paper  on  applicable  law  and 
jurisdiction  in  divorce  matters.  The  Green  Paper  launched  a  wide-ranging  public 
consultation  on  possible  solutions  to  the  problems  that  may  arise  under  the  current 
situation. 

On  17  July  2006  the  Commission  proposed  a  Regulation  amending  Regulation  (EC) 
No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law 
in matrimonial matters. 

At its meeting in Luxembourg on 5 and 6 June 2008, the Council concluded that there 
was  a  lack  of  unanimity  on  the  proposal  and  that  there  were  insurmountable 

OJ L […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 

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(6) 

(7) 

(8) 

(9) 

difficulties  that  made  unanimity  impossible  both  then  and  in  the  near  future.  It 
established  that  the  proposal's  objectives  could  not  be  attained  within  a  reasonable 
period by applying the relevant provisions of the Treaties. 

Bulgaria, Greece, Spain, France, Italy, Luxembourg, Hungary, Austria, Romania and 
Slovenia  subsequently  addressed  a  request  to  the  Commission  indicating  that  they 
intended  to  establish  enhanced  cooperation  between  themselves  in  the  area  of 
applicable  law  in  matrimonial  matters  and  asking  the  Commission  to  submit  a 
proposal to the Council for that purpose. 

On  […]  the  Council  adopted  Decision  […]  authorising  enhanced  cooperation  in  the 
area of the law applicable to divorce and legal separation.  

According to Article 328(1) of the Treaty on the Functioning of the European Union, 
when enhanced cooperation is being established, it is to be open to all Member States, 
subject  to  compliance  with  any  conditions  of  participation  laid  down  by  the 
authorising  decision.  It  is  also  to  be  open  to  them  at  any  other  time,  subject  to 
compliance with the acts already adopted within that framework, in addition to those 
conditions. 

This Regulation should create a clear, comprehensive legal framework in the area of 
the law applicable to divorce and legal separation in the participating Member States, 
provide  citizens  with  appropriate  outcomes  in  terms  of  legal  certainty,  predictability 
and flexibility, and prevent a situation from arising where one of the spouses applies 
for divorce before the other one does in order to ensure that the proceeding is governed 
by a given law which he or she considers more favourable to his or her own interests. 

(10) 

In order to clearly delimit the territorial scope of this Regulation, the Member States 
participating in the enhanced cooperation must be specified.  

(11)  This Regulation should apply irrespective of the nature of the court or tribunal seised.  

(12) 

(13) 

In order to allow the spouses to choose an applicable law with which they have a close 
connection or, in the absence of such choice, in order that that law might apply to their 
divorce or legal separation, the law in question should apply even if it is not that of a 
participating Member State. Where the law of another Member State is designated, the 
network  created  by  Council  Decision  2001/470/EC  of  28  May  2001  establishing  a 
European  Judicial  Network  in  civil  and  commercial  matters10  can  play  a  part  in 
assisting the courts with regard to the content of foreign law. 

Increasing the mobility of citizens calls for more flexibility and greater legal certainty. 
In  order  to  achieve  that  objective,  this  Regulation  should  enhance  the  parties' 
autonomy  in  the  areas  of  divorce  and  legal  separation  by  giving  them  a  limited 
possibility  to  choose  the  law  applicable  to  their  divorce  or  legal  separation.  Such 
possibility  should  not  extend  to  marriage  annulment,  which  is  closely  linked  to  the 
conditions  for  the  validity  of  marriage,  and  for  which  autonomy  on  the  part  of  the 
parties is inappropriate. 

10 

OJ L 174, 27.6.2001, p. 25. 

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(14)  Spouses should be able to choose the law of a country with which they have a special 
connection  or  the  lex  fori  as  the  law  applicable  to  divorce  and  legal  separation.  The 
law chosen by the spouses must be consonant with the fundamental rights enshrined in 
the  Treaties  and  the  Charter  of  Fundamental  Rights  of  the  European  Union.  The 
possibility  of  choosing  the  law  applicable to  divorce  and  legal  separation  should  not 
harm the superior interests of the child.  

(15)  Before designating the applicable law, it is important for spouses to have access to up-
to-date information concerning the essential aspects of national and Union law and of 
the  procedures  governing  divorce  and  legal  separation.  To  guarantee  such  access  to 
appropriate,  good-quality  information,  the  Commission  regularly  updates  it  in  the 
Internet-based public information system set up by Council Decision 2001/470/EC. 

(16)  The informed choice of the two spouses is a basic principle of this Regulation. Each 
spouse should know exactly what are the legal and social implications of the choice of 
applicable law. The possibility of choosing the applicable law by common agreement 
should  be  without  prejudice  to  the  rights  of,  and  equal  opportunities  for,  the  two 
spouses. Hence judges in the Member States should be aware of the importance of an 
informed choice on the part of the two spouses concerning the legal implications of the 
choice-of-law agreement concluded. 

(17)  Certain  safeguards  should  be  introduced  to  ensure  that  spouses  are  aware  of  the 
implications of their choice. The agreement on the choice of applicable law should at 
least be expressed in writing, dated and signed by both parties. However, if the law of 
the participating Member State in which the two spouses have their habitual residence 
lays  down  additional  formal  rules,  those  rules  must  be  complied  with.  For  example, 
such  additional  formal  rules  may  exist  in  a  participating  Member  State  where  the 
agreement is inserted in a marriage contract. 

(18)  An  agreement  designating  the  applicable  law  should  be  able  to  be  concluded  and 
modified  at  the  latest  when  the  court  is  seised,  and  even  during  the  course  of  the 
proceeding  if  the  lex  fori  so  provides.  In  that  event,  it  should  be  sufficient  for  such 
designation to be recorded in court in accordance with the lex fori. 

(19)  Where no applicable law is chosen, and with a view to guaranteeing legal certainty and 
predictability  and  preventing  a  situation  from  arising  in  which  one  of  the  spouses 
applies for divorce before the other one does in order to ensure that the proceeding is 
governed by a given law which he or she considers more favourable to his or her own 
interests,  this  Regulation  should  introduce  harmonised  conflict-of-laws  rules  on  the 
basis  of  a  scale  of  successive  connecting  factors  based  on  the  existence  of  a  close 
connection between the spouses and the law concerned. These connecting factors have 
been  chosen  so  that  the  divorce  or  legal  separation  proceeding  is  governed  by  a  law 
with which the spouses have a close connection, and they are based first and foremost 
on the law of the spouses' habitual residence. 

(20) 

In certain situations, such as where the applicable law makes no provision for divorce 
or  where  it  does  not  grant  one  of  the  spouses  equal  access  to  divorce  or  legal 
separation  on  grounds  of  their  sex,  the  law  of  the  court  seised  should  nevertheless 
apply.  

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(21)  Considerations  of  public  interest  should  allow  courts  in  the  Member  States  the 
opportunity in exceptional circumstances to disregard the application of foreign law in 
a given case where it would be manifestly contrary to the public policy of the forum. 
However, the courts should not be able to apply the public-policy exception in order to 
disregard  the  law  of  another  Member  State  when  to  do  so  would  be  contrary  to  the 
Charter  of  Fundamental  Rights  of  the  European  Union,  and  in  particular  Article  21 
thereof, which prohibits all forms of discrimination. 

(22)  Since there are States and participating Member States in which two or more systems 
of law or sets of rules concerning matters governed by this Regulation coexist, there 
should  be  a  provision  governing  the  extent  to  which  this  Regulation  applies  in  the 
different territorial units of those States and participating Member States. 

(23)  Since  the  objectives  of  this  Regulation,  namely  the  enhancement  of  legal  certainty, 
predictability  and  flexibility  –  and  hence  the  facilitation  of  the  free  movement  of 
persons within the European Union – in international matrimonial proceedings, cannot 
be  sufficiently  achieved  by  the  Member  States  acting  alone  owing  to  the  scale  and 
effects  of  this  Regulation,  these  objectives  can  be  better  achieved  at  Union  level, 
where appropriate by means of enhanced cooperation between  those  Member States, 
in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on 
European Union. In accordance with the principle of proportionality, as set out in that 
Article, this Regulation does not go beyond what is necessary in order to achieve those 
objectives. 

(24)  This Regulation respects fundamental rights and observes the principles enshrined in 
the Charter of Fundamental Rights of the European Union, and in particular Article 21 
thereof,  which  states  that  any  discrimination  based  on  any  ground  such  as  sex,  race, 
colour, ethnic or social origin, genetic features, language, religion or belief, political or 
any other opinion, membership of a national minority, property, birth, disability, age 
or  sexual  orientation  shall  be  prohibited.  This  Regulation  must  be  applied  by  the 
courts of the participating Member States in observance of those rights and principles, 

HAS ADOPTED THIS REGULATION: 

Chapter I – Scope 

Article 1 
Material scope 

This Regulation shall apply, in situations involving a conflict of laws, to divorce and 

1. 
legal separation. 

2. 
For  the  purposes  of  this  Regulation,  'participating  Member  State'  means  a  Member 
State which participates in enhanced cooperation on the law applicable to divorce and legal 
separation by virtue of Council Decision […] of […] authorising enhanced cooperation in the 
area of the law applicable to divorce and legal separation. 

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Article 2 
Universality 

The  law  designated  by  this  Regulation  shall  apply  whether  or  not  it  is  the  law  of  a 
participating Member State. 

Chapter II – Uniform rules on the law applicable to divorce and 
legal separation 

Article 3 
Choice of applicable law by the parties 

1. 
The spouses may choose by mutual agreement the law applicable to divorce and legal 
separation, provided that such law is in conformity with the fundamental rights defined in the 
Treaties  and  in  the  Charter  of  Fundamental  Rights  of  the  European  Union  and  with  the 
principle of public policy, from among the following laws:  

the law of the State of the spouses' habitual residence at the time of conclusion of the 

(a) 
agreement;  

the  law  of  the  State  of  the  spouses'  last  habitual  residence  if  one  of  them  still  lives 

(b) 
there at the time of conclusion of the agreement;  

the law of the State of nationality of one of the spouses at the time of conclusion of the 

(c) 
agreement;  

(d) 

the lex fori. 

Without prejudice to paragraph 4, an agreement designating the applicable law may be 

2. 
concluded and modified at any time, but at the latest when the court is seised. 

3. 
The  agreement  referred  to  in  paragraph  2  shall  be  expressed  in  writing,  dated  and 
signed  by  both  spouses.  Any  communication  by  electronic  means  which  provides  a  durable 
record of the agreement shall be deemed equivalent to writing. 

However,  if  the  law  of  the  participating  Member  State  in  which  the  two  spouses  have  their 
habitual  residence  at  the  time  of  conclusion  of  the  agreement  lays  down  additional  formal 
requirements  for  this  type  of  agreement,  those  requirements  shall  apply.  If  the  spouses  are 
habitually  resident  in  different  participating  Member  States  and  the  laws  of  those  Member 
States  provide  for  different  formal  requirements,  the  agreement  shall  be  formally  valid  if  it 
satisfies the requirements of either of those laws. 

4. 
If the lex fori so provides, the spouses may also designate the law applicable before the 
court during the course of the proceeding. In that event, such designation shall be recorded in 
court in accordance with the lex fori. 

Article 4 
Applicable law in the absence of a choice by the parties 

In the absence of a choice pursuant to Article 3, divorce and legal separation shall be subject 
to the law of the State: 

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(a) 

where the spouses are habitually resident at the time the court is seised; or, failing that, 

(b) 
where the spouses were last habitually resident, provided that the period of residence 
did not end more than one year before the court was seised, in so far as one of the spouses still 
resides in that State at the time the court is seised; or, failing that, 

(c) 

of which both spouses are nationals at the time the court is seised; or, failing that, 

(d) 

where the court is seised. 

Article 5 
Application of the lex fori 

Where the law applicable pursuant to Article 3 or Article 4 makes no provision for divorce or 
does not grant one of the spouses  equal access to divorce or legal  separation on  grounds of 
their sex, the lex fori shall apply. 

Article 6 
Exclusion of renvoi 

Where this Regulation provides for the application of the law of a State, it refers to the rules 
of law in force in that State other than its rules of private international law. 

Article 7 
Public policy 

Application of a provision of the law designated by virtue of this Regulation may be refused 
only if such application is manifestly incompatible with the public policy of the forum. 

Article 8 
States with more than one legal system 

1. 
Where a State comprises several territorial units each of which has its own rules of law 
in respect of divorce and legal separation, each territorial unit shall be considered a State for 
the purpose of determining the law applicable under this Regulation. 

2. 
A  participating  Member  State  within  which  different  territorial  units  have  their  own 
rules  of  law  in  respect  of  divorce  and  legal  separation  shall  not  be  required  to  apply  this 
Regulation to conflicts of law arising between such units only. 

Chapter III – Other provisions  

Article 9 
Information to be provided by participating Member States 

1. 
At  the  latest  by  [three  months  after  the  date  of  application  of  this  Article], 
participating Member States shall communicate to the Commission their national provisions, 
if any, concerning: 

(a) 

the formal rules applicable to agreements on the choice of applicable law; and 

(b) 

the possibility of designating the applicable law in accordance with Article 3(4).  

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The participating Member States shall apprise the Commission of any subsequent changes to 
these provisions. 

2. 
The  Commission  shall  make  all  information  communicated  in  accordance  with 
paragraph 1 publicly available through appropriate means, in particular through the website of 
the European Judicial Network in civil and commercial matters. 

Article 10 
Transitional provisions 

This Regulation shall apply only to legal proceedings instituted and to agreements of 

1. 
the kind referred to in Article 3 concluded after its date of application pursuant to Article 13. 

However,  effect  shall  also  be  given  to  an  agreement  on  the  choice  of  the  applicable  law 
concluded  in  accordance  with  the  law  of  a  participating  Member  State  before  the  date  of 
application  of  this  Regulation,  provided  that  it  fulfils  the  conditions  set  out  in  the  first 
paragraph of Article 3(3). 

2. 
This Regulation shall be without prejudice to agreements on the choice of applicable 
law  concluded  in  accordance  with  the  law  of  a  participating  Member  State  whose  court  is 
seised before the date of application of this Regulation. 

Article 11 
Relationship with existing international conventions 

1. 
Without  prejudice  to  the  obligations  of  the  participating  Member  States  pursuant  to 
Article 351 of the Treaty on the Functioning of the European Union, this Regulation shall not 
affect  the  application  of  bilateral  or  multilateral  conventions  to  which  one  or  more 
participating  Member  States  are  party  at  the  time  of  adoption  of  this  Regulation  and  which 
relate to the subjects covered by it. 

Notwithstanding  paragraph  1,  this  Regulation  shall  take  precedence  as  between 
2. 
participating  Member  States  over  conventions  which  relate  to  subjects  governed  by  this 
Regulation and to which the participating Member States are party. 

Article 12 
Review clause 

By [five years after the entry into force of this Regulation] at the latest, the Commission shall 
present  to  the  European  Parliament,  the  Council  and  the  European  Economic  and  Social 
Committee  a  report  on  the  application  of  this  Regulation.  The  report  shall  be  accompanied, 
where appropriate, by proposed amendments. 

Chapter IV – Final provisions 

Article 13 
Entry into force and date of application 

This  Regulation  shall  enter  into  force  on  the  twentieth  day  following  its  publication  in  the 
Official Journal of the European Union. 

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It  shall  apply  from  [twelve  months  after  the  date  of  adoption  of  this  Regulation],  with  the 
exception of Article 9, which shall apply from [six months after the date of adoption of this 
Regulation]. 

This  Regulation  shall  be  binding  in  its  entirety  and  directly  applicable  in  the  participating 
Member States in accordance with the Treaties. 

Done at Brussels, 

For the Council 

The President 

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