The relevance of double nationality to conflict-of-laws issues relating to divorce and legal separation in Europe

Abstract

The number of transnational couples, in which spouses have different nationalities or double nationality, or reside in different States, has been increasing in the last years. The aim of this article is to analyse the issue of double nationality in European family law, limiting the scope of research on matrimonial matters. It will be first argued that double nationality is not a new topic in the European Court of Justice (ECJ) case law, starting from the well-known Micheletti judgment. The principle outlined twenty years ago has been recently confirmed in the Hadadi case, regarding the determination of the competent court in divorce proceedings, thus in the field of private international law. It will then be analysed whether situations of double nationality are also likely to occur in conflict-of-laws issues. Reference must be made today to EU Regulation no. 1259/2010 on implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. Since situations of double nationality are probable, three solutions will be envisaged, among which a possible «renewal» of the «effective nationality» principle in EU law. This article will finally argue that nationality, a traditional connecting factor well rooted in civil law countries, still resists and may have an important role in the choice of the applicable law by the parties to a dispute regarding divorce or legal separation.