Agreement on divorce moves step closer

Date: 16/01/1997

By Mark Turner

PLANS to oblige Union member states to recognise each other's divorce rulings have regained momentum and could be agreed by the middle of this year.

If approved, the 'Brussels II' convention would require national authorities to recognise divorces granted in another member state, but would normally only allow couples to obtain them in the country they lived in.

Demands for EU rules on matrimonial matters have been growing rapidly of late as increasing numbers of people move around the Union.

In a well-known case, an Italian couple moved to the UK and later divorced. But when the ex-husband moved back to Italy, his local authority refused to recognise the British court's ruling. As a result, when his former wife remarried, she was declared a bigamist in her native country.

But while accepting the need for EU rules, member states wish to avoid a US-style situation where people can pop over the border for a 'quickie divorce'. The proposed convention would normally only allow courts in the spouse's country of “habitual residence” to annul a marriage.

For example, if a Spanish woman was married to a Danish man and both resided in Paris, they could only get a divorce in France. If they lived in different countries, they could apply for divorce in one of those two member states.

But Spanish and Danish courts would be bound to accept the foreign court's decision, unless they had very serious objections on 'public order' grounds.

Another exception would allow two spouses of the same nationality to divorce in their native country even if they did not live there.

Discussions on the convention had been put on ice as experts waited for The Hague Conference an international civil law body to decide on key questions of international jurisdiction. In particular, EU experts felt there was little point in pressing ahead with a Union instrument until the conference had determined international rules on the children of divorced parents, which it did in October.

The conference agreed that the country of the child's “habitual residence” should usually take responsibility, but under certain conditions the member state granting the divorce could pass judgements.

Most member states with objections to a similar proposal in 'Brussels II' have lifted them following The Hague decision. Finland, however, says it cannot accept this.

Despite these difficulties, a working group of experts has made “considerable progress”, according to diplomatic sources, who say that if this pace is maintained, 'Brussels II' could be agreed under the Dutch presidency. But one added: “This is a difficult and sensitive convention. We should not be premature in our celebrations.”