Now, since the entry into force of european regulation n° 1259/2010 said “Rome III”, you can now choose your applicable law in case of legal separation or divorce. The text is entered into application on 21 June 2012.
This agreement applies to the 14 states that have agreed to participate : Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania, Slovenia.
Indeed, in the absence of agreement between the spouses, it was for the judge to resolve the issue of applicable law, and caused many disputes and dramas primarily about the custody of children.
The application of the regulation should expressly exclude certain matters such as the legal capacity of natural persons, the existence, validity or recognition of a marriage, annulment of marriage, the name of the spouses, property consequences, parental responsibility, maintenance obligations or trusts and estates.
Moreover, this regulation has universal application : the law designated by the spouses will be applicable even if the latter is the result of a non-State participant.
You can, however, opt for any law. The choice is restricted to four possibilities to limit fraud :
– Law of the habitual residence of the spouses at the time of the conclusion of the convention.
– Law of the last habitual residence of the spouses, provided that one of them still resides there at the time of the conclusion of the convention.
– National law of the spouses at the time of the conclusion of the convention.
– Lex fori (law of the place where the court has been seized)
You are already married ? It is not too late. The election may be made prior to the referral to the judge of the divorce (during marriage) or even during the procedure of divorce if the law of the forum permits.
If you have not made any choice, the Rome III rule, however, the question as follows and the applicable law is the law of the State :
– the spouses are habitually resident, provided that such residence did not come to an end one year before the court was seised, and that one of the spouses still resides in that State at the time of the referral to the court ;
– or, failing that, of the last habitual residence of the spouses, provided that such residence did not end more than one year before bringing the matter before the court and that one of the spouses still resides in that State at the time of the referral to the court ;
– or, failing that, of the nationality of both spouses at the time the court is seised ;
– or in default,of which the court is seised.
The judge settles the question in the same way as would the spouse in a convention, with the difference that here it is the judge and not spouses who are making the choice.
Another highly innovative provision, a sign of the evolution of manners :
Where the applicable law does not provide for divorce or does not grant one of the spouses, by reason of his membership in one or the other sex, equal access to divorce or legal separation, the law of the forum applies (article 10). To be clear, if the applicable law does not allow the divorce of same-sex couples, the law of the forum applies.
Please note, the international agreements already signed (for example : the convention franco-marocaine of 1981) shall remain in force.