WIREDGOV

Divorcing international couples would be able to choose which EU country's law governs their divorce under enhanced co-operation arrangements unanimously backed by the Legal Affairs Committee on Tuesday. The committee said that, for the first time in EU history, the full Parliament should authorise the twelve Member States that have so far agreed to the plan to start the necessary enhanced co-operation in the field of divorce law. The plenary vote is scheduled for June or July.

Enhanced co-operation in divorce and legal separation law could benefit tens of thousands of "international couples". Each year in the EU there are over 350,000 cross-border marriages and 170,000 divorces, i.e. 20% of all EU divorces. In 2007, the Member States with the biggest shares of international divorces were Germany (34,000), France (20,500) and the UK (19,500).

A Flash Eurobarometer survey on family law has found that 60% of Europeans expect the EU to play a role in facilitating the operation of laws governing divorce involving a party from another Member State.

This proposal would allow international couples (couples of different nationalities, couples living apart in different EU countries or living together in a country other than their home country) to choose which law applies if they are to separate, so long as it is the law of a country to which they have a close connection (such as long-term residence or nationality). For example, it would allow a Franco-German couple living in Belgium to agree whether French or German law applies to their divorce.

If spouses are unable to agree on which law should apply, then this will be decided on the basis of the law of the country where the spouses have their common habitual residence, or failing that, where they had their most recent common habitual residence (provided one still resides there), or failing that, the law of the spouses’ common nationality, or failing that, the law of the court before which the matter is brought.

Committee vote

The committee recommended that Parliament give its consent to the proposal authorising enhanced co-operation in the field of divorce and legal separation law. "We are giving couples more freedom and choice on their divorce, which is a difficult moment in their lives", said rapporteur Tadeusz Zwiefka (EPP, PL), at the committee meeting. EU ministers are to seek a political agreement on this co-operation at a Justice Council on Friday. 

Next steps

If both Parliament and Council authorise the twelve Member States to proceed with enhanced co-operation, a further proposal, with substantive implementing rules attached, will come to Parliament for consultation. Parliament must be consulted on family law measures with cross-border implications, and this remains the case after the entry into force of the Lisbon Treaty.

However, the rapporteur would also like Parliament to call on the Council to ensure that the Council Regulation implementing enhanced co-operation undergoes the "ordinary legislative procedure", i.e. is subject to co-decision with Parliament.

Background

This proposal follows a request by nine EU Member States (Austria, Bulgaria, France, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain), to move forward together after a 2006 Commission proposal (the so-called "Rome III" regulation), became deadlocked in the Council. The nine have meanwhile been joined by Germany, Belgium and Latvia. Greece, which initially wanted to join in the enhanced co-operation procedure, later withdrew. Other EU Member States may join at any time. 

What is enhanced co-operation?

Under EU rules, enhanced co-operation can be used to enable some Member States to move forward on new rules when a unanimous agreement cannot be found, as was the case of the "Rome III" regulation.

Enhanced co-operation was first introduced by the Amsterdam Treaty, under the name "closer co-operation". The Nice Treaty renamed the mechanism "enhanced co-operation" and altered its scope, conditions and the applicable procedure. The Lisbon Treaty enables a minimum of nine Member States to co-operate using the European institutional framework where a legislative initiative in an area of non-exclusive EU competence is blocked.

Enhanced co-operation may begin after the Council authorised it on the basis of a Commission proposal and after obtaining the consent of the European Parliament.

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