APPLICABLE LAW TO SEPARATION AND DIVORCE FOR INTERNATIONAL COUPLES

Since June 21st 2012, the European Regulation no. 1259/2010 (also called “Roma III”) introduced very important innovations regarding the law applicable to divorce and separation.

 

The regulation allows international couples to choose by common agreement the law applicable to their divorce or personal separation, even when it is not the law of a participating member state.

The conditions required are:

1) it must be an international separation or divorce;

 

2) the law chosen is that of the State with which the spouses have a close relationship .

On the point, the art. 5 of the Rules clarifies that the link with the law of a given State is considered “close”, whenever it is one of the following laws:

– the law of the State of habitual residence of the spouses at the time of conclusion of the agreement;

– the law of the State of the last habitual residence of the spouses if one of them still resides there when the agreement is concluded;

– the law of the State of which one of the spouses has citizenship at the time the agreement is concluded;

– the law of the forum.

 

3) that the agreement is done in writing, dated and signed by both spouses.

The written form includes any electronic communication that allows a durable recording of the agreement (Article 7 of the Rules). The form of a public instrument is not required.

 

This agreement may be concluded and amended at any time, but at the latest when the court is seized.

 

When, however, the parties have not chosen the law to be applied, art. 8 of the Regulations states that personal separation and divorce are governed by the law of the State:

– of the spouses’ usual residence, when the court is seised; or, failing that,

– of the last habitual residence of the spouses, provided that this period has not been completed more than one year before the court was seised, if one of them still resides there at the time the court is seised; or, failing;

– of which the two spouses are citizens at the time the court is seised or, failing that,

– in which the court is seized.

 

Finally, it is specified that Regulation no. 1259/2010 apply only to personal separation and divorce. Consequently, all other matters, such as, for example, parental responsibility or maintenance obligations, are excluded, even if they arise as preliminary issues in the context of a divorce or separation process (Article 1) .

 

The importance of this new Community instrument is all the more evident when one considers that the internationalization of couples undoubtedly represents a new phenomenon of the 21st century and that, unfortunately, the number of separations and divorces has grown exponentially in recent years, both nationally and internationally.

 

In particular, spouses residing in Italy, of which only one has French or Belgian nationality, will certainly benefit from the innovation introduced by Regulation 1259/2010.

 

In fact, before that regulation, only Italian law regulated their separation, now, they can choose jointly the French and / or Belgian law and, consequently, directly obtain the divorce. without having to preliminarily “pass” through personal separation.