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APPLICABLE LAW TO SEPARATION AND DIVORCE FOR INTERNATIONAL COUPLES

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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.

articolo del mese

GREEN LIGHT TO ENFORCE AND EXECUTE IN ALL EU STATES OF DECISION RENDERED IN OTHER MEMBER STATES

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On 10 January 2015 the EU Regulation no. 1215/2012, called “Brussels I bis”, replaces Regulation EC / 44/2001 on jurisdiction, recognition and enforcement of judgments, regarding civil and commercial matters, given in the Member States of the European Union (EU).

The main innovation introduced by the aforementioned regulation concerns the execution of judgments issued by the court of a Member State which will be “regarded” as if they had been pronounced in the Member State in which they are to be carried out.

This new instrument has therefore abolished the exequatur, i.e. the procedure set out in the EC Regulation no. 44/2001 to implement these decisions in all other Member States, which provided that, for enforcement purposes, the judicial authority of the Member State of destination should grant in advance the declaration of enforceability in the territory of that State (Article. 38, paragraph 1, of the aforementioned Reg. No. 44/2001 provided, in fact, that ” Decisions made in a Contracting State and enforceable therein shall be executed in another Contracting State after they have been declared enforceable therein at the request of the interested party “).

Article. 39 of the new text establishes instead that ” the judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required “.

 

This means that also the decisions that have been obtained by the creditor without using the “Community” credit recovery tools (i.e., “the European order for payment procedure” provided for by EC Reg. No. 1896/2006 or the “European procedure for low-level disputes “regulated by EC Reg. No. 861/2007) as well as those claims that have been “challenged” by the debtor (the “European Enforcement Order” can be applied at Community level, by EC Reg. No. 805/2004 only for uncontested claims), they will be enforceable title  immediately and automatically in all the other Member States, without obtaining the exequatur.

 

From a practical point of view, thanks to this new Community instrument, it will be possible to proceed with the execution of judgments given, for example, in Italy or in France, in all other EU Member States, simply by notifying the party against which the judicial decision is obtained.

The only condition required for enforcement is, in fact, that the applicant proves the enforceability of the decision according to the laws of his own Member State.

To this end, art. 42 of the Regulations establishes that the applicant provides the authority charged with execution in the requested State, “a copy of the decision with all conditions necessary to establish its authenticity “, as well as “the certificate (pursuant to art. 53) stating the enforceability of the decision” in the Member State of origin.

 

It is therefore an important innovation that confirms the will of the Community legislator to facilitate the circulation of judgments within the European Community in order to reduce time and costs of their execution.

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A “VICIOUS” BREAKUP OF STABLE TRADE RELATIONSHIPS

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The identification of the applicable law, is of fundamental importance in the case of purchase agreements or concession contracts or, in any case, of commercial relationships with French and / or Belgian partners concerning the purchase and sales and resale, over time, of goods and / or services.

In fact, Italian law, in the event of withdrawal from a sales concession contract of indefinite duration, does not require any notice period for the exercise of the withdrawal or any compensation in favor of its contractual counterpart. On the other hand, both French law and the Belgian one imposes (provided that the withdrawal does not occur for just cause or for breach of contract) compliance with a reasonable period of notice and, above all, contemplate, in default of the same, the obligation for the withdrawing party to compensate the damage suffered from the injured party.

To be precise, as regards French law, art. 442-6, I, 5 of the Commercial Code establishes that the party who intends to withdraw, even partially, from a “stable” commercial relationship must comply with a reasonable period of notice, failing which, the termination of the relationship is considered “brutal” and, as such, obliges the withdrawing party to compensate the damage suffered by its business partner for not having had time to reorganize its business.

This provision applies to any type of commercial relationship (distribution, franchising, supply of products, provision of services, etc.), provided it is stable (that is, protracted over time or, in any case, recurring) and concerns not only registered contracts but also those concluded orally or “de facto”.

The notice must be communicated in writing, by registered letter or by certified mail, and does not need any justification, because, for the purposes of its effectiveness, it is sufficient that the intention to withdraw from the contract is communicated.

Furthermore, the notice period must be “appropriate”, otherwise the withdrawal is considered “brutal” in any case.

As regards the duration of the notice, it must take into account both the duration of the commercial relationship, as expressly provided for by the French Code, and other criteria identified by the jurisprudence, such as, for example, the presence of an exclusivity clause or, in any case, the economic dependence of one of the parties or the importance of the investments made for the execution of the contract.

Again, for example a commercial relationship between 1 and 5 years long, the French courts usually consider a 3/6-month notice to be appropriate, while the relationship lasted for 6/10 years, the notice must be equal to double, i.e. 6/12 months.

As for the amount of compensation for damages, the French Code does not provide for a specific quantification. However, as a general rule, the French courts condemn those responsible for a “brutal” withdrawal to pay a compensation equal to the gross profit that the contractor could have incurred in, for the duration of the “appropriate” notice period.

It is also essential to know that this discipline is applied even in the event that the parties have not chosen the law applicable to the relationship (or, more generally, have not concluded any written contract) or, even where a law other than the French one governs the contractual relationship.

In the first case, when the parties have not determined the law governing the relationship, the Rome Convention dated 19 June 1980 on the law applicable to contractual obligations, art. 4, establishes that, in the absence of choice on the applicable law, the law that regulates the distribution contract is that of the country in which the distributor has his habitual residence.

If, therefore, an Italian contractor intends to withdraw from a distribution relationship with a counterpart resident in France and has not agreed on the law applicable to the contract, he must know that, in the event of a dispute, the French law will apply.

The same will happen, as anticipated, where a law different from the French one governs the contractual relationship. In fact, the French Courts consider the aforementioned article 442-6 of the Commercial Code as an international “public order” rule, with the consequence that it applies even when French law does not apply to the contract.

Even in this case, therefore, the Italian commercial partner will in any case be required to comply with a reasonable period of notice, since, in default, its French counterpart may still demand the application of French law and, consequently, the immediate compensation for the damages.

The same is for Belgium governing law, where the withdrawal from a sales concession contract is subject to special protection in favor of the concessionaire, and, where it is exclusive, the withdrawing party is required to comply with a reasonable notice period, in defect of which, like the French law’s provisions, the contractor is required to pay damages.

The Belgian legislator wanted to protect the concessionaire in the event of a unilateral withdrawal from the contractual relationship, by arranging, with the Law of 27 July 1961, measures aimed at limiting the economic losses that it suffers due to the interruption of the commercial relationship.

The scope and conditions for the application of the aforementioned provisions are the same as those provided for by French law, with the further limitation that, as mentioned, it must be an exclusive concession.

A further feature of Belgian law is that, even in the case of a unilateral withdrawal, the concessionaire can claim, in addition to the aforementioned compensation, also the payment of a supplementary compensation.

This additional indemnity is however subject to the existence of three conditions altogether. Namely, that the concessionaire has increased the clientele. That he has sustained, in execution of the contract, expenses. Last, that the concessionaire must, in turn, pay severance indemnities to the dismissed personnel, due to the termination of the concession contract.

I therefore invite the Italian dealers who intend to start with a French or Belgian counterpart a sale concession contract (or, in any case, in the broadest sense of the term, a contract, not occasional, aimed at the purchase and resale of goods and / or services) to take into account the peculiarities illustrated here, both in the negotiation phase and in the interruption of the contract, so as to avoid unexpected and costly economic consequences.