EU plans legal reforms to end 'divorce shopping'

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The Independent Online

The European Commission has unveiled plans to end the widespread practice of "divorce shopping", where one separating spouse rushes to court before the other to exploit advantageous laws in a particular European country.

Under proposals outlined this week, rules would be laid out to make clear which legal system would administer the growing number of "international divorcees".

With 25 legal systems in the EU, divorcing couples often find themselves in a legal morass. Problems are common for spouses of different nationality, those who live in different countries, or those who are abroad.

There are about 2.2 million marriages each year in the EU, of which about 350,000 can be classified as international. About 875,000 divorces take place annually, of which an estimated 170,000 - or 16 per cent - are international. Growing mobility across European borders has not been matched by a convergence of family law. For example, Malta does not allow divorce, though it does recognise judgments by foreign courts.

EU officials do not want to harmonise laws, but they do want to introduce firm rules. These would allow couples to choose which of the legal systems to which they have ties they would prefer to use.

If they cannot agree, EU regulations would use a scale of "connecting factors" to determine the country to which the couple had strongest ties. The plan, which needs to be approved by all member states, is likely to be controversial in countries such as Poland and Ireland, where the grip of the Catholic Church is strong. In Ireland, couples must wait for four years to get a divorce, while in Finland it takes only six months, even if the other spouse objects strongly.

But a commission report argues: "The proposal reduces the incentive for a spouse to 'rush to court' before the other spouse to obtain a result that is more favourable... 'Rush to court' renders reconciliation difficult and leaves no room for mediation. It may also lead to the application of a law which fails to take into account the defendant's interests."

One example given by the Commission of how the system would work involves a Polish man who moved to Finland to work while his wife remained in Poland. After a year the husband decided to end the marriage, knowing that the process in his native county would be long and drawn out. Instead he sued for divorce in Finland, where the local law can be applied to those who have been resident for a year or more.

But under the new system, without the agreement of the wife, the law of the country with which the couple have the closest connection would apply - in this case Poland and not Finland.

The Commission also wants to consult on adopting a similar plan for division of property rights during international divorces. An estimated 2.5 million European properties are owned by spouses who live in another member state.

Franco Frattini, the European commissioner for justice, liberty and security, argued: "These initiatives will simplify life for couples in the EU. They will increase legal certainty and enable couples to know which law will apply to their matrimonial property regime and their divorce.

"The aim is not to harmonise the national laws on divorce ... but to ensure legal certainty, flexibility and access to court."