European Civil Law

Common principles and regulations which governs the choice of law in the European Union




Warning: a European civil code is not yet a reality; however, while that does not happen, we expose a set of rules within the European Union to govern choice of law in civil and commercial matters


Family Law


Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation

CHAPTER I


SCOPE, RELATION WITH REGULATION (EC) No 2201/2003, DEFINITIONS AND UNIVERSAL APPLICATION



Article 1

Scope


1. This Regulation shall apply, in situations involving a conflict of laws, to divorce and legal separation.



2. This Regulation shall not apply to the following matters, even if they arise merely as a preliminary question within the context of divorce or legal separation proceedings:


(a) the legal capacity of natural persons;


(b) the existence, validity or recognition of a marriage;


(c) the annulment of a marriage;


(d) the name of the spouses;


(e) the property consequences of the marriage;


(f) parental responsibility;


(g) maintenance obligations;


(h) trusts or successions.




Article 2

Relation with Regulation (EC) No 2201/2003

This Regulation shall not affect the application of Regulation (EC) No 2201/2003.




Article 3

Definitions

For the purposes of this Regulation:


1. 'participating Member State' means a Member State which participates in enhanced cooperation on the law applicable to divorce and legal separation by virtue of Decision 2010/405/EU, or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union;



2. the term 'court' shall cover all the authorities in the participating Member States with jurisdiction in the matters falling within the scope of this Regulation.




Article 4

Universal application

The law designated by this Regulation shall apply whether or not it is the law of a participating Member State.






CHAPTER II


UNIFORM RULES ON THE LAW APPLICABLE TO DIVORCE AND LEGAL SEPARATION


Article 5


Choice of applicable law by the parties


1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws:


(a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or


(b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or


(c) the law of the State of nationality of either spouse at the time the agreement is concluded; or


(d) the law of the forum.



2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized.



3.   If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum.




Article 6

Consent and material validity

1. The existence and validity of an agreement on choice of law or of any term thereof, shall be determined by the law which would govern it under this Regulation if the agreement or term were valid.


2. Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seized if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.




Article 7

Formal validity

1. The agreement referred to in Article 5(1) and (2), shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.


2. However, if the law of the participating Member State in which the two spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for this type of agreement, those requirements shall apply.


3. If the spouses are habitually resident in different participating Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws.


4. If only one of the spouses is habitually resident in a participating Member State at the time the agreement is concluded and that State lays down additional formal requirements for this type of agreement, those requirements shall apply.




Article 8

Applicable law in the absence of a choice by the parties

In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State:


(a) where the spouses are habitually resident at the time the court is seized; or, failing that


(b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that


(c) of which both spouses are nationals at the time the court is seized; or, failing that


(d) where the court is seized.




Article 9

Conversion of legal separation into divorce

1. Where legal separation is converted into divorce, the law applicable to divorce shall be the law applied to the legal separation, unless the parties have agreed otherwise in accordance with Article 5.


2. However, if the law applied to the legal separation does not provide for the conversion of legal separation into divorce, Article 8 shall apply, unless the parties have agreed otherwise in accordance with Article 5.




Article 10

Application of the law of the forum

Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply.





Article 11

Exclusion of renvoi

Where this Regulation provides for the application of the law of a State, it refers to the rules of law in force in that State other than its rules of private international law.





Article 12

Public policy

Application of a provision of the law designated by virtue of this Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum.





Article 13

Differences in national law

Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation.




Article 14

States with two or more legal systems ' territorial conflicts of laws

Where a State comprises several territorial units each of which has its own system of law or a set of rules concerning matters governed by this Regulation:


(a) any reference to the law of such State shall be construed, for the purposes of determining the law applicable under this Regulation, as referring to the law in force in the relevant territorial unit;


(b) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit;


(c) any reference to nationality shall refer to the territorial unit designated by the law of that State, or, in the absence of relevant rules, to the territorial unit chosen by the parties or, in absence of choice, to the territorial unit with which the spouse or spouses has or have the closest connection.





Article 15

States with two or more legal systems ' inter-personal conflicts of laws

In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons concerning matters governed by this Regulation, any reference to the law of such a State shall be construed as referring to the legal system determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the spouse or spouses has or have the closest connection applies.




Article 16

Non-application of this Regulation to internal conflicts of laws

A participating Member State in which different systems of law or sets of rules apply to matters governed by this Regulation shall not be required to apply this Regulation to conflicts of laws arising solely between such different systems of law or sets of rules.




CHAPTER III

OTHER PROVISIONS

Article 17

Information to be provided by participating Member States

1. By 21 September 2011 the participating Member States shall communicate to the Commission their national provisions, if any, concerning:


(a) the formal requirements applicable to agreements on the choice of applicable law pursuant to Article 7(2) to (4); and


(b) the possibility of designating the applicable law in accordance with Article 5(3).


The participating Member States shall inform the Commission of any subsequent changes to these provisions.



2. The Commission shall make all information communicated in accordance with paragraph 1 publicly available through appropriate means, in particular through the website of the European Judicial Network in civil and commercial matters.




Article 18

Transitional provisions

1. This Regulation shall apply only to legal proceedings instituted and to agreements of the kind referred to in Article 5 concluded as from 21 June 2012.

However, effect shall also be given to an agreement on the choice of the applicable law concluded before 21 June 2012, provided that it complies with Articles 6 and 7.


2. This Regulation shall be without prejudice to agreements on the choice of applicable law concluded in accordance with the law of a participating Member State whose court is seized before 21 June 2012.




Article 19

Relationship with existing international conventions

1. Without prejudice to the obligations of the participating Member States pursuant to Article 351 of the Treaty on the Functioning of the European Union, this Regulation shall not affect the application of international conventions to which one or more participating Member States are party at the time when this Regulation is adopted or when the decision pursuant to the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union is adopted and which lay down conflict-of-laws rules relating to divorce or separation.


2. However, this Regulation shall, as between participating Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation.




Article 20

Review clause

1.By 31 December 2015, and every 5 years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. The report shall be accompanied, where appropriate, by proposals to adapt this Regulation.


2. To that end, the participating Member States shall communicate to the Commission the relevant information on the application of this Regulation by their courts.





CHAPTER IV

FINAL PROVISIONS

Article 21

Entry into force and date of application

This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.

It shall apply from 21 June 2012, with the exception of Article 17, which shall apply from 21 June 2011.

For those participating Member States which participate in enhanced cooperation by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union, this Regulation shall apply as from the date indicated in the decision concerned.