21 June 2012

Certainty on divorce?


Brett Frankle
Partner | UK

Thursday, 21 June 2012 sees the coming into force of Council Regulation amending Regulation EC No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters, or to give it its more snappy title, Rome III. In a nutshell, Rome III determines what law will apply to a divorce. To us English, this all seems a bit odd. English Courts only apply English law. Certainty is achieved this way. However, for the 14 EU Member States who have signed up to Rome III their Courts determine the law that will apply on divorce by reference to a whole host of criteria, to include the common nationality of the parties. Rome III achieves clarity and certainty for these States by not only allowing parties to choose the law that will apply on their divorce, but by seeking to ensure that in the absence of a choice by the parties, the same law will apply in whichever of the States does ultimately deal with the matter. The idea behind the Regulation is to seek to stop what has become known as forum shopping — where a party to a divorce weighs up the pros and cons of getting divorced in different Member States and then pursuing their divorce wherever they will achieve the best outcome. In practice though very few people forum shop for anything other than financial reasons i.e. by choosing the country in which they will likely receive the most or pay the least amount of money. Rome III doesn't deal with money issues though, only the law that will apply on divorce/separation. A lost opportunity? It is perhaps over ambitious to think unanimity could have been achieved between all Member States, and not just 14 of them, as to the law that should apply on divorce (England was never going to agree to apply foreign law, for example); or that we could have one all encompassing Regulation dealing with money and divorce. However, if the aim was to stop forum shopping then by being limited in scope to divorce, it comes up short. That said, the respect for party autonomy is to be applauded and Rome III will also come into its own when drafting pre or post nuptial agreements, as yet another issue on which agreement between the parties will be binding and will avoid expensive litigation. Pre-nups have become a hot topic recently and Withers LLP has been at the forefront of developments, acting for the successful parties in both Crossley v Crossley and Z v Z (No 2), two of the leading cases in this field. Ultimately, it's important to remember that Rome III is part of a much wider EU family law jigsaw, the next piece of which (the law that shall apply to parties property rights) is already the subject of a Green Paper. To be continued, as they say…

Category: Blog