Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)

1. REGULATION ROME IIICouncil Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)

2. Material Scope • Divorce and Legal separation • Excluding: • Marriage annulment • Preliminary questions (Ex: recognition of a marriage) • Ancillary matters • Ex: name, maintenance, parental responsability, property consequences, successions • International situations 2 2

3. Geographical Scope • Enhanced cooperation (331 TFEU) • 15 Member States • Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Austria, Portugal, Romania, Slovenia and Lithuania. 3

4. Universal application • The law designated by this Regulation shall apply whether or not it is the law of a participating Member State. 4

5. Entry into force • Entry into force : 30th December 2010 • Applicable since 21st June 2012 • Legal proceedings started as from 21st June 2012 • Effect is also given to an agreement on the choice of the applicable law concluded before 21 June 2012, provided that it complies with article 6 (consent and material validity) and 7 (formal validity) of the regulation and that the procedure is instituted as from 21st June 2012 5 5

6. Case n°1 • A Belgian citizen was living with his French wife in France. He moves back to Belgium on first of April 2013. In November 2013, he decides to seize the Belgian court with a request for divorce based on Belgian law. At the first hearing, his wife is present and agrees to the application of Belgian law. • Is this choice of law valid? 6

7. Choice of Law Laws that can be chosen Formal validity of the choice of law Consent and material validity 7

8. A. Laws that can be designated • the law of the State where the spouses are habitually resident at the time the agreement is concluded; or • 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 • the law of the State of nationality of either spouse at the time the agreement is concluded; or • the law of the forum. 8

9. Precisions concerning the possible choices Habitual residence Nationality Lex fori 9

10. A.1.The concept of habitual residence • Autonomous interpretation • ECJ on expatriation allowance (ECJ, 15 September 1994, Magdalena Fernandez v. Comission, C-452/93): « place (…) established with the intention that it should be of lasting character, the permanent or habituel centre of his interests. (…) all the factual circumstances (…) must be taken into account » • ECJ on Brussels II regulation concerning children ( ECJ, 2 April 2009, A., C-523/07): “place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.” Or ECJ, 22 December 2010, Mercredi, C- 497/10 PPU) 10

11. A.2. The difficulties of dual nationalities • Cons. 22 :« Where this Regulation refers to nationality as a connecting factor for the application of the law of a State, the question of how to deal with cases of multiple nationality should be left to national law, in full observance of the general principles of the European Union” • Here the connecting factor is the choice of the parties, there is no limit to only one nationality (in contrast to the law applicable in the absence of choice, where the nationality is the direct connecting factor) 11

12. A.3.Lex Fori • The choice of the law of a particular State which the parties expect to be later the forum • The abstract choice of lex fori 12

13. B.Formal validity of the choice of law agreement • When? • At the latest at the time the court is seized, except if the law of the forum alows it during the proceeding • How? • In writing, dated and signed by both spouses • Any comunication by electronic means wich provides a durable record of the agreement shall be deemed equivalent to writing • However the law of the participating member State in which two spouses have their habitual residence can require aditional formalities; if the spouses have diffent habitual residence the agreement needs to respect the requirements of at least one of the Laws of a participating member State. 13

14. C. Consent and material validity • Existence and validity of the agreement is determined by the law which would govern it, if the agreement was valid • BUT: in order to establish that he/she did not consent, the spouse may rely upon the law of the country in which he/she 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 14

15. In conclusion • The judge can apply Belgian Law 15

16. Case n°1, Hypothesis 2 • Imagine that the wife is not present in court and is not represented by a lawyer • Can the judge apply Belgian Law? 16

17. Application ex officio of foreignlaw? • Regulation Rome III has no provision on that matter so it follows national procedural rules: in some member states the law is applied ex officio while in others the parties have to plead and prove the content of foreign law • In Belgium: Jura novit curia. However the judge has to respect the principle of judicial debate. 17

18. Applicable Law in the absence of a choice of Law agreement (a) Law of the State where the spouses are habitually resident at the time the court is seized; or, failing that (b) Law of the State 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) Law of the State of which both spouses are nationals at the time the court is seized; or, failing that (d) Lex fori. 18

19. Conclusion • The judge has to apply French Law 19

20. Multiple nationalities • Consideration 22: “Where this Regulation refers to nationality as a connecting factor for the application of the law of a State, the question of how to deal with cases of multiple nationality should be left to national law, in full observance of the general principles of the European Union.” • Principle: application of national conflict of nationalities rule • Exception: Cannot be contrary to the principles of EU • ECJ: Micheletti (C-369/90, 7/07/1992) • ECJ: Garcia Avello (C-148/2, 2/10/2003), Hadadi (C-168/08, 16/07/2009); • Three different situations: 2 non-EU nationalities; 1 EU nationality and 1 non-EU nationality; 2 EU-nationalities 20

21. Case n°2 • A Spanish and an Italian man have married in Spain and have moved afterwards to Belgium. • Later on, a request for divorce is introduced in Belgium. Will the Belgian judge apply the Rome III Regulation? 21

22. Applicability to same-sex marriages? • Art.1 of the Regulation : the Regulation does not apply to the questions of validity, existence or recognition of a marriage • Art. 13 of the Regulation : «Nothing in this Regulation shall oblige the courts of a partici­pating Member State whose law (…) does deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation.” 22

23. Marriage is valid under Belgian Law • Rome III can be applied => If there is no choice of Law, Belgian Law (habitual residence of the spouses) 23

24. Case n°2, Hypothesis 2 • What if the couple asks for a divorce in Germany? 24

25. Uncertainty about the acceptance of a german judge to divorce a same-sex marriage (cf. application of Brussels II Regulation) • Uncertainty about the application of Rome III 25

26. Case n°2, Hypothesis 3 • The couple has entered a Registered Partnership in Germany. Can they divorce in Belgium and will the belgian judge apply the Rome III Regulation? 26

27. Application to registered partnerships? • Most likely not • In Belgium : • Is the partnership equivalent to a marriage? 27

28. Case n°3 • 2 Marocan citizen living in Belgium want to divorce in Belgium and agree on the aplication of moroccan Law • Is this choice of law valid? 28

29. Universal application of the Regulation • Art. 10 of the Regulation:  • « Where the law (….) designated 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” 29

30. Conclusion • Application of Moroccan law if divorce by mutual consent or chiqaq • Not for a talaq 30

31. General Public policy exception • Art. 12: “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” 31

32. Thank you very much for your attention !