The law applicable to divorce and legal separation under Regulation (EU) no. 1259/2010 of 20 December 2010

Abstract

Regulation (EU) No. 1259/2010 of 20 December 2010, often referred to in the political and scholarly debate as the “Rome III” Regulation, lays down uniform conflict-of-laws rules on divorce and legal separation. It represents the outcome of the first “enhanced cooperation” in the history of the European Union and will apply in fourteen Member States from 21 June 2012. After tracing the path that led to its adoption, the paper highlights the general features of the new piece of legislation. It goes on to examine the different provisions of the new instrument, starting from those defining its scope of application. The rules allowing the spouses to agree on the law applicable to divorce and legal separation, one of the salient features of the new instrument, and the rules applicable in the absence of choice, are then illustrated and commented. The article further examines the limitations affecting the functioning of these rules due to substantive reasons, thus reflecting the significant differences existing in the area of family law between national legal systems. Finally, the paper provides a critical assessment of the new piece of legislation. On one side, while conceding that “differentiated integration” poses a threat to the unity and the internal consistency of the body of rules governing judicial cooperation in Europe, it submits that such threat may be countered to some extent through existing institutional devices designed to enhance the “quality” of the application of European Union law, such as the competence of the Court of Justice to decide references for preliminary rulings, or the work that might be done by the Judicial Network in Civil and Commercial Matters to promote a “culture” of cooperation among Member States. On the other side, it observes that, regrettably, some of the technical solutions adopted by the drafters of the Regulation are not entirely convincing and that the possibility should be considered, in due course, of amending the relevant provisions in light of the practical experience that will be developed over the next few years within the participating Member States.