Almost one in every five divorces that take place in
It is not unusual for couples to live in countries which are not their native home. They might have moved there for work opportunities. It is also possible that a couple might have home in more than one country.
The European Commission estimates that out of 2.2 million marriages that take place in the EU every year 350,000 are international marriages. These rising number of international marriages and divorce has encouraged European Union to harmonise the laws of matrimonial cases in the member states. It has become essential that there exist a universal code for the matrimonial cases that would work, despite differences in country’s legal codes. This will not only be helpful for couples from different countries but also for the children who are the main victims of divorce.
Need for Harmonising Divorce Procedures
The lines of jurisdiction have become blurred in cases of international divorce. The complexity of international divorce leaves many individuals frustrated and confused. For example; an Australian banker husband married to an Australian wife, is transferred to London Head Office of the bank and their marriage breaks down. In such a situation:
- Australian court will have a jurisdiction since both of them are Australian nationals.
This would lead to confusion on the divorce proceedings.
In some cases, where the divorcing couple have a house in more than one country, the lines of jurisdiction pertaining to the distribution of marital property and divorce are not clearly defined. There is no specified rule as to laws of which state will be followed.
In the EU itself, there are major variations in the laws. The divorce procedures of Spain and Scotland do not require any minimum years of completion to file a divorce, whereas in the Northern Islands it is required that a couple should be married for at least four years.
With such conflicting laws and procedures, it is very confusing and expensive for international couples whose marriage breaks down.
Another cause of concern is that the conflicting laws have lead people to find loopholes in them and bend it to their advantage. Divorcing wives have recently started flocking to
A new European Council Regulation known as Rome III which is expected to come into effect in March 2008 is likely to provide solutions for such cases in the EU.
Advantages of Harmonising Laws in Europe
The important consideration is the extent to which these laws should be harmonised between the countries given their different practice and procedures. The problems that arise due to the current state are many. The spouses are in doldrums predicting which law will apply in their divorce proceedings. Moreover, they do not have the autonomy of choice with regards to the court and applicable law.
Thus harmonisation is likely to:
- simplify the application of laws
- have a legal certainty for international couples
- have transparency
Disadvantages
However, this is only one side of the story. Looking at the magnitude of the problem, a solution is not too easy. The most obvious hurdles are:
- The application of the law: The laws of different countries are not only varied but also contradictory and conflicting. Their application varies from country to country and trying to frame a ‘unite de doctrine’ is next to impossible.
- Interference with the sovereignty: Framing of the universal law involves interfering with the autonomy and independence of a country which might not be acceptable to it.
- Different approaches: Different countries have different approaches and it is practically difficult to find a common ground of acceptance.
The Final Word
Harmonising of divorce procedures will enable the country to safeguard and ensure citizen’s fundamental rights. It will also ensure that the divorcing couples are not discriminated on the basis of their nationality. Everyone will be considered equal in front of the law. But while doing so, care has to be taken to protect the sentiments and emotions of the people involved.
