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REFLECTIONS ON JURISDICTION AND THE LAW APPLICABLE TO DIVORCE WITH A FOREIGN ELEMENT

G. Lupsan

Abstract

With the accession of Romania and Bulgaria to the European Union, a number of EU Council regulations take precedence over the national law and they have direct and immediate applicability in the trials that the courts are judging from these two countries. Creating an area of freedom, security and justice in which it is insured the free movement of persons is an objective of the European Union, and for that, in the domain of judicial cooperation in civil matters, each state has taken legislative measures. Our study aims at analyzing some aspects of dissolution of marriage in which there is a foreign element (foreign citizenship Bulgarian or Romanian, residence or domicile in any Member State of the EU), based on the provisions of Regulation (EC) no. 2201/2003 of the EU Council on jurisdiction, recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, which takes priority to the national laws. Thus, we aim at providing solutions to practical situations where a divorce is desired, and the spouses are Romanian citizens residing in Bulgaria or both are Bulgarian citizens residing in Romania, or the marriage is mixed and the spouses reside in another Member State of the European Union (e.g. Italy). However, this crisis situation couple - divorce - is solved by judicial, administrative or notary means, according to the applicable law, with the intervention of the Regulation mentioned above. So it raises the question of conflict of laws. Which is the competent authority to settle the claim for divorce? What is the applicable law? How to solve the exception of jurisdictional non-competence of a court hearing, knowing, on the one hand, the inclination of the national judge to consider its jurisdiction, and on the other hand, the interest of a spouse to have the divorce proceedings to its national jurisdiction? How will the recognition of such judgment be achieved in another state? How to solve the situation of a minor child coming from the marriage and he is with his parents or, conversely, he is left in the care of others, often grandparents, in the home state of one of the spouses. Regarding the Romanian law, the solutions are interesting, as in civil matters we have a New Civil Code (2011) and a New Code of Civil Procedure (2013), with the provisions that interest our study. At the end of our study, having as argument, among others, the solutions in matters of divorce, we give a positive answer to the question whether we are facing a process of federalization of the European judicial space.

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DOI resolver: doi.org/10.5593/sgemsocial2014/b21/s5.100

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