Disappointment over UK and Irish divorce opt-out

Commission says cross-border divorce proposal respects all member states.

The European Commission has expressed disappointment the decision of the UK and Ireland not to implement proposals on simplifying divorce procedure for people who live in other EU states.

Both states had until last week to decide whether to accept the proposal announced in July, which would allow EU nationals living in a different EU state or of a different nationality to choose which country’s divorce laws should apply to them.

"It is regrettable they decided not to opt in," said a spokesman for Franco Frattini, the commissioner for justice, freedom and security. The Commission is understood to have drafted the proposal to take the concerns of member states into account. "We put forward the proposal convinced it was sufficiently respectful of member states’ sensitivities in this area," the spokesman said.

A spokeswoman for the UK government said that because of Britain’s different legal system, applying foreign divorces would not be easy and could take longer to implement. This could end up costing both the applicants and the state more and would not have the effect of making divorce more straightforward, she said.

Ireland chose not to apply the measure because of the anomaly it would have created for one of the most restrictive divorce regimes in the EU. Couples wanting to divorce in Ireland must be separated for four years and "proper provision" must be made for the parties involved and dependent children. In some states, such as Sweden, couples have only to be separated for six months. A spokeswoman for the Irish government said the Commission proposal would allow "EU nationals resident in Ireland to obtain a divorce in our courts on substantially different and less onerous grounds than provided for in our constitution".

The Law Society of England and Wales, the professional body for solicitors, criticised the British government’s decision saying the new proposal would have removed the current "rush-to-court" situation whereby the divorce law applicable depends on who files papers first in court. In cases where there is a dispute between couples over which divorce law should apply, the Commission proposal would allow the court to decide based on long-term residency or nationality.

"The divorce courts in multi-cultural Britain should be sophisticated enough to offer choice to its own citizens and people from other European countries. As a popular international jurisdiction of choice we think that participating in the European regulation would further enhance England and Wales’s international legal reputation," said Desmond Hudson, Law Society chief executive, in a statement.

The Commission proposal will be debated by member states next year during Germany’s presidency of the EU’s Council of Ministers. Germany is particularly keen to see the measure introduced. Each year 15% of German divorces involve couples of different nationalities. The UK and Ireland are the only EU states which are allowed to decide whether to opt in on EU proposals on justice matters.

Commission says cross-border divorce proposal respects all member states.