Download - Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)
![Page 1: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/1.jpg)
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 PfeiffLawyer
Teaching Assistant (Free University of Brussels and University of Liège)
![Page 2: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/2.jpg)
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 situations2
![Page 3: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/3.jpg)
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
![Page 4: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/4.jpg)
Universal application The law designated by this Regulation shall
apply whether or not it is the law of a participating Member State.
4
![Page 5: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/5.jpg)
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
![Page 6: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/6.jpg)
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
![Page 7: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/7.jpg)
Choice of LawA. Laws that can be chosenB. Formal validity of the choice of lawC. Consent and material validity
7
![Page 8: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/8.jpg)
A. Laws that can be designated1. the law of the State where the spouses are habitually
resident at the time the agreement is concluded; or 2. 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
3. the law of the State of nationality of either spouse at the time the agreement is concluded; or
4. the law of the forum. 8
![Page 9: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/9.jpg)
Precisions concerning the possible choices
1) Habitual residence2) Nationality3) Lex fori
9
![Page 10: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/10.jpg)
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
![Page 11: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/11.jpg)
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
![Page 12: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/12.jpg)
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
![Page 13: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/13.jpg)
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
![Page 14: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/14.jpg)
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
![Page 15: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/15.jpg)
In conclusion The judge can apply Belgian Law
15
![Page 16: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/16.jpg)
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
![Page 17: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/17.jpg)
Application ex officio of foreign law? 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
![Page 18: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/18.jpg)
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
![Page 19: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/19.jpg)
Conclusion The judge has to apply French Law
19
![Page 20: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/20.jpg)
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
![Page 21: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/21.jpg)
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
![Page 22: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/22.jpg)
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 partici pating 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
![Page 23: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/23.jpg)
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
![Page 24: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/24.jpg)
Case n°2, Hypothesis 2 What if the couple asks for a divorce in
Germany?
24
![Page 25: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/25.jpg)
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
![Page 26: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/26.jpg)
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
![Page 27: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/27.jpg)
Application to registered partnerships? Most likely not In Belgium :
Is the partnership equivalent to a marriage?
27
![Page 28: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/28.jpg)
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
![Page 29: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/29.jpg)
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
![Page 30: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/30.jpg)
Conclusion Application of Moroccan law if divorce by
mutual consent or chiqaq Not for a talaq
30
![Page 31: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/31.jpg)
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
![Page 32: Silvia Pfeiff Lawyer Teaching Assistant (Free University of Brussels and University of Liège)](https://reader034.vdocument.in/reader034/viewer/2022042719/56813590550346895d9cfcdc/html5/thumbnails/32.jpg)
Thank you very much for your attention !