EU rules leave divorcees in limbo

Date: 03/10/1996

By Thomas Klau

LEGAL limbo continues to threaten thousands of expatriate and mixed-nationality EU couples determined to end their marriages, as work on a new convention to ensure mutual recognition of divorces progresses at snail's pace.

The delay is being caused by the procedural complexity of the Maastricht Treaty's third pillar on justice and home affairs.

The key issue which remains to be resolved is that of which member state's jurisdiction would-be divorcees should turn to if they want their divorce to be recognised by all EU countries.

Currently, Italians living in the Union may obtain a divorce ruling in the UK, but this does not guarantee their divorce will be legally valid in their own country. So Italian law will hold them to be bigamous, should they remarry after their separation.

The difficulties which member states have been grappling with since work started during the German presidency in 1992 result from wide variations in the divorce laws in individual member states.

In Finland, for example, divorces can be obtained quite easily, requiring just one of the couple to declare his or her intention to separate, while Portuguese law still involves the religious authorities and Canonic Law in the granting of divorces.

While no attempt is being made to harmonise national laws, member states are determined to ensure that couples who choose their divorce jurisdiction according to the new convention, known as Brussels II, will be guaranteed recognition of their separation in all EU countries.

The aim is to give couples the right to choose between the legal systems of several member states, if different rules apply for example in their place of residence or their country of birth. That has led to some fears of 'quickie divorces' being obtained in member states where laws are less strict.

Controversy also surrounds the complex and highly-sensitive issue of child custody, which a minority of member states would prefer to leave outside the scope of the Brussels accord.

Debate on this issue has been suspended pending the completion of a world-wide convention on children's rights involving 45 countries, currently being negotiated in The Hague at a conference scheduled to end on 19 October.

The Hague convention foresees that the legal authorities in a child's usual place of residence would determine how the custody issue should be dealt with when parents divorce.

But many member states would like a more flexible arrangement to prevail in the Union and are considering whether a common declaration should be attached to the convention specifying that a different custody arrangement would apply in the EU should all member states agree on one.