13-02-2023

Separations and divorces with elements of foreignness: Art 10 of EU Regulation 1259/2010 must be interpreted according to its literal meaning: the law of the Member State referred to must be applied, even if it provides for more severe and restrictive divorce conditions

If the foreign law provides for different substantive conditions from the law of the forum, the court having jurisdiction is still required to verify and ascertain the existence of those conditions

The Court of Justice of the European Union, in its judgment dated 16/07/2020 (C-249/2019), provided clarification on the interpretation of Article 10 in EU Regulation no. 1259/2010, regarding selection criteria of the applicable law to divorce and separation proceedings involving elements from multiple Member States. The case at hand arose from a divorce action brought by two Romanian nationals permanently resident in Italy before the Court of First Instance of Iai which then declined its jurisdiction in favour of the Judectoria Sectorului 5 Bucureti (Court of First Instance of the fifth district of Bucharest). In developing its arguments, the European Court outlines the relevant legal framework, first noting that the jurisdiction issue appears to be correctly settled, based on the citizenship of the two spouses under Article 3, paragraph 1, letter b) of Regulation EU 2201/2003. As for the law applicable to the procedure, the Court′s judgement specifies that the reference framework, i.e. Regulation EU 1259/2010, sets out the relevant criteria in Articles 5, 8, 10, 12 and 13, the content of which is reproduced below for the sake of convenience. Well, the first of the above mentioned articles, entitled "Choice of applicable law by the parties" provides as follow: "1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws: (a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or (b) 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 (c) the law of the State of nationality of either spouse at the time the agreement is concluded; or (d) the law of the forum. 2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized. 3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum". Article 8 of the EU Regulation, entitled "Applicable law in the absence of a choice by the parties" provides that "In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State: (a) where the spouses are habitually resident at the time the court is seized; or, failing that (b) 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) of which both spouses are nationals at the time the court is seized; or, failing that (d) where the court is seized". Article 10 - "Application of the law of the forum" - is as follows: "Where the law applicable pursuant to Article 5 or Article 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, the law of the forum shall apply". Article 12 of EU Regulation 1259/2010, entitled "Public policy", states the following: "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". Lastly, according to article 13, entitled "Differences in national law", "Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation". Having said that, the EU Court notes that the Romanian first instance judge correctly identified Italian law as applicable to the case in question since, in the absence of the choice made by the spouses (who were permanently resident in Italy) under Article 5 of Regulation EU 1259/2010, the subsequent Article 8 (a) applies, which provides that divorce and the separation of spouses are governed by the law of the State of their habitual residence at the time the judicial authority is seized. However, when applying Italian law, the first-instance court found that, in accordance with Italian law, a divorce petition could only be filed if a court decision had previously approved or pronounced the personal separation of the spouses and at least three years had elapsed between the date of such separation and the date of filing the divorce petition. Since no evidence was provided of a judicial decision approving or pronouncing the personal separation, and in the absence of a personal separation procedure under Romanian law, the court of first instance declared that the lawsuit in question had to be carried out before the Italian judicial authorities, with the consequent inadmissibility of any petition for this purpose brought before the Romanian authorities. One of the spouses challenged the decision before the Tribunalul Bucureti, the court of reference for the Court of Justice, arguing that the Romanian law on divorce should be applied in accordance with Article 10 of Regulation EU 1259/2010, as transposed in Article 2600 of the Romanian civil code. Given that the Italian legal system affords restrictive conditions for filing for divorce, it could be considered, by analogy, to be equivalent to one that does not provide for divorce at all and thus incompatible, even on grounds of public policy, with the Romanian law. On that ground, the Tribunalul Bucureti (Higher Court of Bucharest) deemed it appropriate to stay the proceeding and refer the following question to the EU Court for a preliminary ruling: "Is the expression the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce [, in Article 10 of Regulation No 1259/2010,] to be interpreted (a) in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or (b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?" Basically, the question referred to the Court was whether a restrictive law on divorce, such as the Italian one that imposes a period of separation as a condition for dissolving the marital bond, can be equated to a law that does not provide for divorce at all. Well, the Court of Justice of the European Union firstly outlines that the main procedure, as correctly noted by the Romanian judges, must be governed by Italian law; in secundis, the EU judge states that, although the Romanian law does not provide for any conditions and/or preliminary procedures for properly filing for a divorce action, art. 10 of Reg. EU 1259/2010 should be interpreted restrictively, according to its literal meaning. This assertion is not only imposed by the textual data of Article 10, but also for reasons of systemic and teleological order, since its extensive interpretation would be contrary to the objectives of Regulation No. 1259/2010, which aims to establish a clear and complete legal framework in the field of divorce and personal separation in the Member States, to ensure legal certainty, predictability and flexibility in international matrimonial proceedings and thus facilitate the free movement of persons in the European Union, as well as to prevent situations where one spouse requests divorce before the other to ensure that the proceedings are governed by a law that they consider more beneficial to the protection of their interests. Being the Court of Justice also responsible for ensuring that the national courts correctly apply the EU law to decide in a conclusive way the controversies brought before them, it addresses the legal issue that has prevented the Romanian judge from resolving the dispute. The National court had declared the divorce petition inadmissible due to the impossibility of giving effective application to the Italian law, which requires homologation or pronouncement of the personal separation of the spouses prior to allowing a decision on divorce. With this regard, the Court of Justice holds that, even if Romanian law does not contain procedural provisions relating to personal separations, the Romanian courts must still verify that the substantive conditions provided for by the foreign law are fulfilled when adjudicating a divorce. This means that, in such a situation, the Romanian court must ascertain, in the context of the divorce proceedings, whether the foreign law′s requirements for a separation of persons of three years′ duration have been met. In more general terms, the Court of Justice of European Union states that where the court having jurisdiction finds that the foreign law applicable under the provisions of Regulation No. 1259/2010 allows for a divorce only on condition that it is preceded by a separation of persons of three years′ duration, while the law of the forum does not provide procedural rules in the matter of separation of persons, that court, whilst being unable to pronounce such a separation itself, must nevertheless verify that the substantive conditions provided for by the foreign law are fulfilled and ascertain them in the context of the divorce proceedings for which it has jurisdiction. Therefore, in case of separations and divorces with elements of foreignness regulated by a law other than that of the forum, it is always the court having jurisdiction in accordance with Regulation (EU) No 2201/2003 that must verify and ascertain the existence of the substantive conditions provided for by the foreign law applicable to the case submitted to it, even where the domestic law does not provide for the same conditions. The image, in respect of the rights of others, is taken from Immagine di pch.vector su Freepik