EU Co-operation Procedure Gives Choice to International Divorcing Couples

New EU procedure will give choice to international couples over which country’s law will govern their divorce. Selena Masson speaks to Rodney Hylton-Potts, a leading expert on international divorce, practice and procedure of Hylton-Potts Legal Consultants, about the use of this procedure.

EU member states are using a new enhanced co-operation procedure to introduce new rules allowing international divorcing couples to select which country’s law will apply to their divorce.

Rodney Hylton-Potts says: “For the first time in EU history, member states are using the enhanced co-operation procedure, to push forward with rules allowing international divorcing couples to choose which nation’s laws to apply to their divorce case. Under the EU Treaties, enhanced cooperation allows nine or more countries to move forward on a measure that is important, but is blocked by a small minority of Member States. Other EU countries keep the right to join later when they want.”

In this case it will allow 14 EU countries (Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain) to move forward with a regulation to help couples of different nationalities, those living apart in different countries or those living together in a country other than their home country.

Hylton-Potts adds this is a big step forward. “People fall in love across borders, whatever their nationality. As a result, many international couples need to be certain of the rules that apply in their situation. There were more than 1 million divorces in the 27 Member States in 2007, of which 140,000 (13 per cent) had an ‘international’ element.”

According to Hylton-Potts, some commentators have expressed fears that the use of enhanced cooperation, could spell the end of European integration. “I doubt this will be the case–all the signs are that this precedent will deepen European integration. Hundreds of thousands of international couples will benefit from the new rules. Given that the previous proposal had been stuck in an institutional traffic jam for half a decade, it is safe to say the EU now has the means to put important legislation into the fast lane.”

Hylton-Potts explains the proposal aims to protect weaker partners during divorce disputes. “International couples will be able to agree which law would apply to their divorce or legal separation. In cases where the couple cannot agree, judges would have a common formula for deciding which country’s law applies. Couples would have more legal certainty, predictability and flexibility. This would help protect spouses and their children from complicated, lengthy and painful procedures.”

He adds this will have considerable impact on divorce lawyers. “Where there is an ‘international’ element, it will undoubtedly mean far less divorce work for lawyers in England and Wales. Some husbands may welcome this because London has become the divorce capital of the world and certainly Europe, when it comes to awarding financial settlements to wives, especially in the larger money cases.”

However, Hylton-Potts says there will be some drawbacks. “Although judges will have a common formula for deciding which country’s law applies, that is not necessarily the same as jurisdiction. What has to be avoided is where one country’s law applies but proceedings take place in another country. That involves bringing in expert lawyers as to the law of the other jurisdiction, which considerably adds to the costs and delay.”