The judgment of 16 July 2020 in Case C-249/2019 clarifies how national courts must handle divorce cases when the applicable foreign law sets stricter procedural conditions than their own legal system.
CJEU Clarifies Article 10 in Cross-Border Divorce Case
With its judgment of 16 July 2020 in Case C-249/2019, the Court of Justice of the European Union (CJEU) ruled on a request for a preliminary ruling concerning the interpretation of Article 10 of EU Regulation No. 1259/2010 of 20 December 2010.
This regulation governs the rules for determining the applicable law in proceedings for divorce and legal separation involving cross-border elements that is, where the legal systems of more than one Member State are engaged.
Background: Romanian Nationals Residing in Italy
The case before the CJEU arose in the context of divorce proceedings initiated by two Romanian nationals, permanently resident in Italy, before the Judectoria Iai (First Instance Court of Iai, Romania), which subsequently declined jurisdiction in favor of the Judectoria Sectorului 5 Bucureti (First Instance Court of Bucharest′s Fifth District).
Jurisdiction Confirmed Under EU Law
In its reasoning, the CJEU first set out the relevant legal framework, noting that the question of jurisdiction was undisputed: under Article 3(1)(b) of EU Regulation No. 2201/2003, jurisdiction was properly vested in the Romanian courts on the basis of the parties shared nationality.
Applicable Law: EU Regulation No 1259/2010
With respect to the applicable law, the CJEU emphasized that Regulation No. 1259/2010 governs the matter. The relevant provisions in this case were Articles 5, 8, 10, 12, and 13, which were outlined by the Court for clarity.
Key Provisions of the Regulation
1. Article 5 (Choice of applicable law by the parties) allows spouses to agree upon the applicable law for divorce or legal separation, provided it is one of the following:
a) the law of the State in which the spouses habitually reside at the time of the agreement;
b) the law of the State of their last habitual residence, provided one of them still resides there at the time of the agreement;
c) the law of the State of nationality of either spouse at the time of the agreement; or
d) the law of the forum.
Such an agreement can be made or modified at any time before the court is seised. Where permitted by the law of the forum, the spouses may also make this choice during proceedings, and such choice must be recorded in accordance with that law.
2. Article 8 (Applicable law in the absence of choice by the parties) provides that, failing a choice under Article 5, divorce and legal separation shall be governed by the law of:
the spouses habitual residence when the court is seised;
or, failing that, their last habitual residence if it did not end more than one year before the court was seised, and one spouse still resides there;
or, failing that, the law of the State of which both spouses are nationals at the time of the application;
or, failing that, the law of the forum.
3. Article 10 (Application of the law of the forum) states:
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.
4. Article 12 (Public policy) allows a court to refuse to apply a rule of the designated applicable law if doing so would be manifestly incompatible with the public policy (ordre public) of the forum.
5. Article 13 (Differences in national law) clarifies that nothing in the regulation obliges a court of a Member State to pronounce a divorce where its domestic law does not recognize the marriage in question or does not provide for divorce.
Italian Law Deemed Applicable, But Procedurally Problematic
Against this legal backdrop, the CJEU summarized the procedural background leading to the reference: the Romanian court rightly determined that Italian law applied, since the parties were habitually resident in Italy and had not made a choice of law under Article 5. Therefore, Article 8(a) applied, pointing to Italian law.
Dismissal Due to Lack of Legal Separation However, in applying Italian law, the first instance court in Romania found that under Italian law, a divorce petition in such circumstances could only be admitted if a court had previously issued or approved a legal separation, and at least three years had elapsed between the separation and the filing of the divorce petition. As there was no evidence of such a separation judgment and no equivalent procedure under Romanian law, the Romanian court held that only Italian courts could hear the case, thereby dismissing the application as inadmissible in Romania.
Appeal Invokes Article 10 as a Fallback
One spouse appealed to the Tribunalul Bucureti (Bucharest Regional Court), which then referred the matter to the CJEU. The appellant argued that Romanian law should govern the divorce proceedings under Article 10 of Regulation No. 1259/2010, transposed into Article 2600 of the Romanian Civil Code. They contended that the restrictive conditions of Italian law should be treated as equivalent to a legal system that does not permit divorce, making Article 10 applicable.
The Core Legal Question for the CJEU
The referring court asked whether the phrase in Article 10 the applicable law does not provide for divorce should be interpreted narrowly, applying only when divorce is entirely unavailable, or broadly, to include cases where divorce is allowed only under extremely restrictive conditions, such as a mandatory three-year separation not provided for under the forums procedural law.
Does a Restrictive Law Equal a Prohibition?
In essence, the interpretative question put to the CJEU was whether a restrictive divorce law (e.g., requiring a prior separation, as in Italian law) could be equated with a legal system that does not permit divorce at all.
Strict Interpretation Upheld by the CJEU
The CJEU held that Article 10 must be interpreted restrictively and literally. The mere imposition of strict conditions (such as a prior three-year separation) does not equate to a complete prohibition on divorce. The Court emphasized that this interpretation was not only grounded in the plain wording of Article 10 but also aligned with the structure and objectives of Regulation No. 1259/2010. An expansive interpretation would undermine the Regulations goals namely, creating a clear and comprehensive legal framework for determining applicable law, promoting legal certainty, predictability, and flexibility, facilitating the free movement of persons within the EU, and preventing forum shopping.
Avoiding Legal Uncertainty and Forum Shopping
The Court warned that a broader reading of Article 10 would necessitate case-by-case assessments of how restrictive foreign divorce laws are compared to forum law introducing subjectivity and uncertainty, and thereby conflicting with the Regulations objectives.
Ensuring Consistency in Cross-Border Divorce Cases
In other words, the Court made clear that any interpretation of Article 10 that departs from its literal meaning would encourage forum shopping with spouses racing to file for divorce in the jurisdiction they perceive as more favorable.
Even Without Equivalent Procedures, Foreign Law Must Be Applied
Having clarified the interpretation of Article 10, the CJEU also addressed the practical issue that had led the Romanian court to dismiss the case. The first instance court had held that it could not apply Italian law because Romanian law lacks a procedure for legal separation. However, the CJEU held that even where the forum′s legal system does not provide for such a procedure, the court must still assess whether the substantive conditions imposed by the applicable foreign law are met.
Courts Obligation to Apply Foreign Substantive Law
Thus, in divorce and separation cases involving cross-border elements and governed by foreign law, the court having jurisdiction under Regulation No. 2201/2003 is obliged to verify and determine whether the substantive conditions laid down by the applicable foreign law are fulfilled even if domestic law does not recognize or replicate those conditions procedurally.
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