The Failure of the Establishment of a Common European Choice of Law on Divorce

The Europeanisation of International Family Law

“…The Standing Committee observes that, under certain circumstances, the court can set aside the foreign law and apply Dutch law either by means of the public policy exception (violation of the principle of equality), 16 or by considering the foreign law to be 'technically inapplicable' to the dissolution of same-sex marriages. 18 Furthermore, the absence of such rules also leads to legal inequality for same-sex spouses vis-àvis different-sex spouses, who can rely on Article 1 of the CLAD for the determination of the law applicable to divorce. the absence of clear rules with respect to the dissolution of a same-sex marriage, is undesirable.…”

“…12 Duncan has distinguished two difficulties that arise in achieving a uniform approach on this issue. 18 The most difficult task would be to agree on a definition of the non-marital union to be regulated or to specify its main characteristics. 10 In April 2009 it was lastly confirmed that The Hague Conference leaves the issue without priority on the Agenda, see Conclusions and Recommendations adopted by the Council on General Affairs and Policy of the Conference of 31 March-2 April 2009.…”

“…13 The Brussels I-Convention contains rules on international jurisdiction, as the negotiators of the Convention realised that unification of the effects of judgments would be useless without the unification of jurisdictional rules. 18 Firstly, the area covered was wider: not only recognition and enforcement, but also jurisdiction and choice of law were included. 14 See Article 1(2(1)) of the Brussels Convention.…”

“…the individual is purely a holder of economic freedoms, into a broader idea of 'Union citizenship'. 18 See also Hellner 2002, pp. Up until the Treaty of Maastricht this right was exclusively reserved for workers and their family members.…”

“…15 In the first category, the States exclusively apply their own national law (lex fori) to international divorce proceedings. 18 The connecting factors employed in the Member States vary, but in most cases they include criteria based on the nationality or habitual residence of (either of) the spouses. 16 The desire to apply solely the lex fori can either originate from a very strict or a very lenient internal law approach towards divorce.…”