Commission in bid to ease divorce laws

The European Commission will next week announce a proposal to address problems in obtaining divorces for people who have married someone of different European nationality or are no longer resident in their home country.

The Commission is expected to propose allowing people to choose which legal jurisdiction they would come under, based on their nationalities or their residency. But the proposal is set to run into difficulties because of the very different laws on divorce that apply across the EU.

The Commission wants to clear up problems over which law to apply when, for example, a married couple from one member state is resident in another member state or when the couple are of different EU nationalities.

The majority of member states are said to be in favour of the idea and responded positively to a consultation which followed the publication of a Commission Green Paper. With 15% of German divorces each year involving couples of different nationalities, the government of Berlin is particularly keen to see resolved the issue of which laws should apply.

But some member states are expected to resist the proposal which would involve allowing different divorce laws to be applied in their countries. For example, Malta does not allow divorce. The proposal would mean that although Maltese nationals could not divorce in Malta, a couple of different EU nationality resident in Malta could apply to the Maltese court for a divorce under their country's laws. Similarly in Ireland where the divorce law states a couple must have been separated for four years, establish that their marriage has broken down and be offered mediation, a couple from Sweden could apply to an Irish court to allow them to divorce under Swedish law, where divorce can be obtained quickly.

The Irish government's submission to the Commission on the Green Paper stated: "Ireland is not in favour of allowing spouses to choose the applicable law, as this could be open to abuse...such abuse would be likely to impact most on divorce regimes, such as that of Ireland, which require a relatively long separation period."

Ireland, like the UK, however, is allowed to choose whether to "opt-in" to such a proposal under rules agreed in the Amsterdam treaty. Malta has no such safeguard but could veto the proposal in the Council of Ministers since unanimous approval will be required.

"It is going to lead to a two-tier situation," said Geoffrey Shannon, Irish expert on the Commission on European Family Law, which examines the harmonisation of EU family law.

The proposal would also mean that judges would have to be trained in the divorce law of all 25 member states.

The European Commission will next week announce a proposal to address problems in obtaining divorces for people who have married someone of different European nationality or are no longer resident in their home country.