CHOICE OF LAW RULES ON DIVORCE IN EUROPEAN PRIVATE INTERNATIONAL LAW - Научное сообщество
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CHOICE OF LAW RULES ON DIVORCE IN EUROPEAN PRIVATE INTERNATIONAL LAW

28.09.2020 09:47

[Секция 3. Гражданское и семейное право. Гражданское процессуальное право. Коммерческое право. Жилищное право. Обязательственное право. Международное частное право. Трудовое право и право социального обеспечения]

Автор: Kernychna Sofiya Yaroslavivna, Doctoral student, Chair of Private International Law, Faculty of Law and Administration, Jagiellonian University in Cracow


Party autonomy is one of the fundamental principles of private law. The concept of the choice of law derived from XVI century and was proposed by famous French lawyer Charles Dumoulin in the field of the contractual obligations [1, 42]. Choice of law in the conflict of law is like continuation of the freedom of contract in the substantive law. In Private International Law the principle of party autonomy allows the subjects of the cross-border private legal relationships with foreign element to choose a law, which will be applicable to the relevant legal relationships. The principle of party autonomy is given effect by choice of law rules, enabling parties to designate the applicable law that will govern their legal relationships. Consequently, parties can influence which law will govern their activities and are able to choose the law that suits them best. Choice of law reduces legal uncertainty and unpredictability as far as parties could choose the legal systems that they are familiar with [2, 291-292].

Freedom of choice of law has been well known in the field of contractual obligations. It found its way as well to the field of non-contractual obligations and now the principle of party autonomy has reached as well the field of European family and succession law, which is deeply entrenched within local tradition and culture. That is the result of increasing mobility of the EU citizens, encouraged by the freedom of movement.

Choice of law in European international law of divorce is allowed under the Regulation No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (the Rome III Regulation) [3]. Rome III Regulation results from enhanced cooperation in accordance with Articles 326-334 of the Treaty on the Functioning of the European Union, enabling some of Member States of the EU to participate while leaving some other Member States behind. On 21 June 2012 the Rome III Regulation entered into force in fourteen EU MS: Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxemburg, Malta, Portugal, Romania, Slovenia and Spain. It is applicable as well in Lithuania from 22 May 2014. Other the EU Member States that wish to participate may do so in accordance with articles 328 and 331 (1) of the Treaty on the Functioning of the European Union. Hence, the Rome III Regulation is applicable to divorce and legal separation in cross-border cases, but only among those the EU Member States, who participate in the “enhanced cooperation”. Before entering into force of the Rome III Regulation the possibility to choose the applicable law was existing already in the law of Belgium, Germany and the Netherlands [4].

Rome III Regulation provides in art. 5 (1) with a limited choice of law, while spouses may choose among four (or five in case of different nationalities of the spouses) applicable laws: 1) the law of the State where the spouses are habitually resident at the time the agreement is concluded; 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; 3) the law of the State of nationality of either spouse at the time the agreement is concluded; 4) the law of the forum. In the legal literature is noticed that leaving parties with an unlimited choice of law could result in the application of exotic laws with which the parties have little or no connection [2, 297].

Time of designation of choice of law is restricted as well, however according to the art. 5 (2) of the Rome III Regulation the agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is sized. However, according to the art. 5(3) the Rome III Regulation if the lex fori allows the spouses may also designate the law applicable before the court during the course of the proceeding. Such designation shall be recorded in the court in accordance with the law of the forum. It should be noticed that the Rome III Regulation does not provide any limit to how early the choice can be made. In legal literature is mentioned that choice of law can be made even in the pre-nuptial agreement [4].

The material validity of choice of law agreement according to the art. 6 (1) of the Rome III Regulation “shall be determined by the law which would govern it under the Rome III Regulation if the agreement or term were valid”, which means that the material validity of the chosen law is determined by chosen law. Moreover, the Rome III Regulation clearly indicate that choice of law should be an informed choice. Regarding the Recital 18 of the Rome III Regulation the informed choice of both spouses is a basic principle of the Rome III Regulation, therefore each spouse should know exactly what are the legal and social implications of the choice of applicable law. It is emphasized as well that the judges in the participating Member States should be aware of “the importance of an informed choice on the part of the two spouses concerning the legal implications of the choice-of-law agreement concluded”. The Rome III Regulation is providing some form of the protection to the “weaker party”, designating that a spouse may rely on his or her habitual residence to indicate a lack of his or her consent (art. 6 (2) of the Rome III Regulation).

The formal validity of choice of law agreement is prescribed by art. 7 (1) of the Rome III Regulation, according to which the choice of law agreement shall be expressed in writing, dated and signed by both spouses. However, the equivalent to writing shall be deemed any communication by electronic means, which provides a durable record of the agreement (e.g. an e-mail, where the spouses agree concerning applicable law). Moreover, additional requirements to such choice of law agreements must be fulfilled, prescribed by: 1) law of the EU Member State in which the spouses have their habitual residence at the time the choice of law agreement is concluded (art. 7 (2); 2) if no common habitual residence exist, choice of law agreement shall be formally valid if it satisfies the requirements of either of law of habitual residence of any of the spouses (art. 7 (3); 3) if only one of the spouses is habitually resident in a participating Member State at the time the choice of law agreement is concluded and that State lays down additional formal requirements for this type of agreement, those requirements shall apply (art. 7 (3). Imposing these formal requirements the EU legislator have a purpose to protect the parties as well as to make sure that choice is informed [4].

Conclusion. The Rome III Regulation is an important step in the development of European International Family law concerning divorce and legal separation. The introduction of the principle of party autonomy to the cross-border cases on divorce gives parties the possibility to decide which law will govern their affairs. The choice of law is not unlimited, but with such limitation the European legislator intends to protect parties.

References:

1. Skąpski J. Autonomia woli stron w prawie międzynarodowym prywatnym w zakresie zobowiązań z umów. – Kraków, 1964. – 207 p.

2. Pfeiffer M. Choice of law in International Family and Succession Law // The Lawyer Quarterly. – 2012. – № 4. – P. 291 – 305.

3. Regulation No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. – Available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:343:0010:0016:en:PDF

4. Kruger T. Rome III and Parties’ Choice. – Available at: http://www.familyandlaw.eu/tijdschrift/fenr/2014/01/FENR-D-13-00010



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