The law applicable to legal separation and divorce*

Regulation (EU) No 1259/2010 (“Rome III”) provides for uniform conflict-of-law rules aimed at determining the law applicable to legal separation and divorce proceedings. This Regulation strengthens parties autonomy, recognizing a limited possibility to the choice of applicable law. The informed choice of both spouses is an essential principle under the Regulation (Recital 18). If this choice is not made, the Regulation provides for conflict-of-law rules that use connection criteria in the subsequent combination (i.e. a drop-down list). Recital 10 establishes the need for consistency, both in the field of ratione materiae application and in the discipline, of the Rome III Regulation with Regulation (EC) No 2201/2003, relating to jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels II bis“). The same Recital specifies, however, that the Rome III Regulation should apply exclusively to the dissolution or loosening of marriage ties, and that the aforementioned law, determined by the conflict-of-laws rules of this Regulation, should apply to the grounds for divorce and legal separation. Pursuant to Art. 1, para. 2, the Regulation excludes from its material scope (even if they arise as preliminary issues): the legal capacity of natural persons; the existence, validity and recognition of marriage; the annulment of marriage; the name of the spouses; the property consequences of the marriage; parental responsibility; maintenance obligations; trusts or successions.

Enhanced cooperation

This Regulation is the result of enhanced cooperation, a mechanism provided for by European Union law which allows a limited number of Member States to adopt a European legal act despite the need for unanimity to do so (this is the case with legal acts of the EU in the field of judicial cooperation in family matters, pursuant to Art. 81(3) of the TFEU). A legal act adopted as a result of enhanced cooperation applies only to Member States that have participated in it, with the possibility of subsequent accessions (Art. 328 TFEU). To date, therefore, the Rome III Regulation applies to 17 Member States (so-called “participating States”): Austria, Belgium, Bulgaria, Estonia, France, Germany, Greece, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia, Spain and Hungary.

“Universal” conflict-of-law rules (erga omnes)

Choice of law (Art. 5)

The time of the choice of applicable law

Although in the Italian legal order there is no precise rule relating to this aspect, the case law on the merit issues has clarified that the choice of the applicable law, to be qualified as a legal instrument of procedural law, can take place up to the moment parties are allowed to integrate their claims (Art. 709, para. 3, of the Italian Code of Civil Procedure), when – in case of proceeding conversion from litigation to consensual one – coincides with the final hearing on conclusions determination. The choice-of-law agreement for a foreign law, in particular, is to be considered admissible even if entered into after the proceeding initiation, by virtue of the general principles of due process and the admissibility of procedural legal instruments (Court of Milan, 10 February 2014).

Material validity of the choice of law agreement (Art. 6)

The existence and validity of the agreement shall be determined by the law which would govern it under this Regulation if the agreement was valid. A spouse, in order to establish that he/she did not consent to, 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.

Formal validity of the choice of law agreement (Art. 7)

The agreement shall be expressed in writing, dated and signed by both spouses. To this end, any electronic communication that provides a durable registration of the agreement is allowed. Additional formal requirements may apply if provided for by the law of the State of the habitual residence of both or one of the spouses.

Objective criteria: the applicable law in the absence of choice (Art. 8)

Art. 8 provides for a series of connecting criteria in a drop-down list.

The habitual residence of the spouses

Pursuant to Art. 8, lett(s). a) and b), divorce and legal separation are governed by the law of the State of the spouses habitual residence at the time the court is seized or, failing that, by the law of the State where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that State.

Nationality

If the criteria set out in letter a) and letter b) are not applicable, letter c) provides for the application of the law of the State the two spouses are citizens at the time the court is seized. The assessment of citizenship is left to the States domestic rules.

Recital No 22 of the Regulation specifies that it is up to the domestic law of the single States party to the enhanced cooperation to regulate the case of a multiple citizenships, in compliance with the general principles of the European Union law. In the Italian legal order, pursuant to Art. 19, para. 2, of Law No 218 of 1995, reforming the Italian system of private international law, in case of multiple citizenships “the law of the one between the States belonging to [the person] has the closest connection is applied”. Art. 19, para. 2 of Law No 218 of 1995 also establishes that, if the Italian one is among the citizenships, the latter prevails. However, this rule does not apply, at least with reference to cases limited to the European judicial area, given that the prohibition of discrimination and the free movement of persons require the different citizenships of the Member States to be considered equally (judgment of 2 October 2003, C-148/08, Garcia Avello, EU:C:2003:539).

The law of the forum

On a residual basis, pursuant to letter d), the law of the State in which the court is seized is applied. By virtue of Art. 10, the law of the forum shall be applied even when the one chosen pursuant to Art. 5 or identified pursuant to Art. 8 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. In the judgment of 16 July 2020, C-249/19, JE, EU:C:2020:570, the Court of Justice of the European Union has provided some clarifications on Art. 10, stating that in a situation such as that referred to in the main proceedings, where the law referred to by the conflict-of-law rule (the Italian one) provides for divorce, the court seized could not apply the law of the forum pursuant to the rule at stake.

The following illustrates the substantive law in matters of divorce and legal separation under some States (Albania, Ukraine, China and Romania), which represent the most common citizenships foreign people have in Italy, which could be arise before the Italian court referred to by the applicable conflict-of-law rules mentioned above. General information relating to the substantive law of EU Member States in the area of legal ​​separation and divorce can also be accessed here.

ALBANIA

Divorce and legal separation of spouses in Albanian law are governed by the Family Code of the Republic of Albania (available here in the original language and here in an unofficial translation in English).

Divorce can only be granted by the court and can be:

1. consensual: if the married couple unanimously wants to put an end to the marital relationship (Art. 125 et seq.);
2. non-consensual: if a spouse wants to terminate the marital relationship, in the event that:
   1. the couple has lived separately for 3 years (Art. 129 et seq.);

Relevant powers are recognized to the Albanian court in proceedings for the dissolution of marriage. Particularly:

– in divorce by mutual consent, the court, in approving the separation agreement, assesses whether it provides for adequate economic protection for a spouse or child (Art. 129);

– in the non-consensual divorce claimed for following a three-year separation, the court can deny the divorce in the event that the spouse who opposes the divorce proves that the dissolution of the marriage would produce serious moral and material consequences for himself/herself or for the children (Art. 130).

UKRAINE

Divorce and legal separation of spouses in Ukrainian law are governed by Chapter 11 of the 2002 Family Code (available here in the original language; an abstract in English can be found here. Here, then, an unofficial translation in English).

The legal separation can be claimed for by one or both spouses in the event that there is inability or unwillingness to continue living together. However, during the legal separation, the marital obligations are not considered suspended and one can be reconciled at any time (Art.119 et seq.). Divorce, on the other hand, definitively dissolves the marriage ties.

Divorce in Ukraine can take place in the following ways:

1. Dissolution of the marriage declared by the registrar: a) consensual: if the married couple without children unanimously wants to put an end to the marital relationship (Art. 106); b) non-consensual: if a spouse wants to terminate the marital relationship, in the event that the other spouse (Art. 107): -has disappeared; -is (or becomes) incapable; -is judged to a prison term for not less than three years;
2. Dissolution of the marriage declared by the court:
3. consensual: if the married couple with children unanimously wants to terminate the marital relationship (Art. 109);
4. non-consensual: if a spouse wants to terminate the marital relationship. The court, in this case, grants a divorce if it assesses that the continuation of the relationship and cohabitation is not in the best interest of one of the spouses or of the children (Art. 112).

The law specifies that divorce cannot be granted during the wife’s pregnancy or during the child’s first year of life, unless one of the spouses has engaged in unlawful behaviour towards the other spouse or child (Art. 110).

CHINA

Divorce in China, until recently, has been governed by the Marriage Law, adopted on 10 September 1980 by the National People’s Assembly and amended on 28 April 2001. The Chinese text can be found here; an English translation is available here.

On 28 May 2020, the third session of the National People’s Assembly adopted the first Civil Code of the People’s Republic of China. From 1 January 2021, the date of entry into force of the Code, the Marriage Law has been repealed. Divorce law is contained in Part V of the Code (here an abstract in English and here the original language version).

Divorce according to the new Civil Code

According to the Civil Code, divorce can be granted in the following ways: – consensual: issuance of the divorce certificate by the Registration Office, if the parties agree, and they sign a divorce agreement and each compile an application for divorce. The main novelty introduced by the Civil Code consists in the possibility given to each spouse to withdraw their application within 30 days from its submission; – judicial: the People’s Court will have to attempt mediation. If the attempt fails, and the Court considers the marriage ties irreparably dissolved, it states the divorce. The husband cannot apply for divorce during pregnancy, or within one year of the birth of the child or within six months of the end of the gestation. This restriction does not apply if it is the wife that claims for divorce, or if, according to the Court, it is necessary to grant the divorce claimed for by the husband.

ROMANIA

In Romania, divorce is regulated by Art(s) 373 et seq. of the so-called New Civil Code, approved by Law No 287/2009 and entered into force on 1 October 2011 (available here in the original language). Unlike the Italian law, this Code does not provide for the legal separation.

According to Romanian law, if there is the consent of both spouses, they can directly apply for a divorce, which can be issued with an administrative measure, notarial deed or judicial decision. In the absence of consent, the aforementioned Art. 373 provides for the possibility of a divorce being issued by the court judicially at the application of only one of the spouses, if one of the following alternative requirements is met:

• a serious deterioration in the marital relationship and the inability to continue married life;
• a de facto separation that has lasted for at least two years;
• state of health of the applying spouse which makes it impossible to continue the marriage.

In the event of a fault-based divorce, the former spouse not at fault is entitled to compensation for damages if the marriage lasted at least twenty years.

Silvia Marino, Ilaria Aquironi, Omar Vanin, Arianna Vettorel

Note – This document is subject to the warning set out here.

*The English translation is provided for by the Aldricus Editorial Board; the original version by the author, in Italian, is available in this portal in the corresponding Italian section.