According to Business Week, the European Commission has proposed a law that will allow divorcing couples of mixed nationality to choose which country’s law will apply to their divorce. If they are unable to reach a mutual agreement, the decision will be made by the courts on their behalf. The purpose of the law is to prevent “forum shopping” which is basically a form of divorce tourism that benefits the monied spouse and hurts the financially dependent spouse. Traditionally, a spouse would seek to file first in the most favorable jurisdiction. So for example, if two German citizens are living in England and one wanted a divorce, even though they are German citizens, they could file in England because of their habitual residency. The trouble with that is that Germany is a more favorable jurisdiction for the monied spouse and England is more favorable to wives and to the spouse without the financial advantages. So the spouse seeking to gain the most would try to file first in England.
The European Commission seems to have a big problem with this and so they are seeking to have some uniformity in their family law jurisprudence with this newly proposed legislation. If it goes through, it will affect only some countries in the Union, to wit: Austria, Bulgaria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain.
But not all countries in the EU are compliant. Several, like UK, Ireland, Malta and Sweden have opted out. Call it divorce isolationism if you want. But here is what the Brussels Journal said on the issue a few years back:
EU member states are lining up to attack a European Commission proposal to establish common rules for cross-border divorces […]. The proposal – called Rome III and presented last July – sets out which national legislation should apply in the case of a couple of two nationalities or a couple living in their non-native country […]. Rome III would impose the law of the country where they live or have the strongest ties to. […] [A] Swedish justice ministry document [describes] a potential scenario in which […] a Swedish woman who marries an Iranian man in Sweden and emigrates to Iran but after several years decides to leave both her spouse and his country and go home. “The proposal means that Iranian divorce law would be applied by the Swedish court,” the justice ministry study states.
[…] Malta has stated it will oppose any proposal that would oblige Maltese courts to apply foreign laws to circumvent its ban on divorce. “If Ireland were to adopt and implement this measure, this would allow EU nationals resident in Ireland to obtain a divorce in our courts on substantially different and less onerous grounds than that provided for in our constitution”, the Irish justice ministry recently said, planning an opt-out from Rome III. […] “It would sadly not bring about the benefits it was intended to bring about, at least not in the UK,” a UK diplomat said, confirming that the UK has also requested an opt-out from the bill.