Scholarly record
REFLECTIONS ON JURISDICTION AND THE LAW APPLICABLE TO DIVORCE WITH A FOREIGN ELEMENT
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.
Publication Impact Profile
Publication details
References6
See Muir Watt, H., Aspects économiques du droit international privé (l’impact de la globalisation économique sur les fondements des conflits de lois et de juridictions/Economic aspects of private international law (the impact of economic globalization on the basis of conflict of laws and of jurisdiction), RCDAI 2004, p. 307
Published in the Official Journal of the European Union no. L 338 of 23 December 2003. This regulation applies to all Member States except Denmark, which has not acceded to the Treaty of Maastricht. Throughout the study, brevitatis causa, in order to avoid repetition and ease of expression, any reference to the text of Regulation (EC) no. 2201/2003 will be made by the expression “The Brussels II bis Regulation”.
Published in the Official Journal of the European Union no. L 189 of 22 July 2010. Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia are the states in which it was established an enhanced cooperation in the field of law applicable in matrimonial matters.
Clavel, Sandrine, L’harmonisation des règles de compétence et des procédures de règlement des conflits (exception de litispendance)/The harmonization of the rules of jurisdiction and procedures for the settlement of conflicts (with the exception of lis pendens). In L’espace judiciaire européen civil et pénale: regards croises/The European, judicial, civil and criminal space: crossed views. Under the direction of Jault- Seseke, F.; Lelieur, J.; Pigache, C., Edition Dalloz, Paris, 2009, p. 45.
There is one exception provided by article 5, paragraph 3 of the Regulation, which allows spouses to designate the law applicable before the court during the divorce proceedings, but only if the law of the forum allows. However, the new Code of Civil Procedure does not grant this possibility to spouses. For French law, see Clavel, S., Droit International/International Law, Edition Dalloz, Paris, 2010.
Marie- Laure Niboyet, La globalisations du proces civil international dans l’espace judiciare europeen et mondial 2006/ The globalization of the international civil trial in the European and global judiciary space 2006, In Journal de droit international/Journal of International Law, 2006.
View or Download full articleAccess options
SWS access login
Login as SWS Scientific CommitteeLogin as SWS Scientific PartnerLogin as SWS AuthorAuthors and approved SWS contributors will read and export their own linked papers after identity matching by SWS profile, email and SGEM GlobalID.
For librarian assistance: [email protected]
Purchase Instant Access
- Article can be downloaded after successful payment.
- Article may be used according to SWS library access terms.
- Article cannot be redistributed.
