The Proposed European Choice of Law Rules on Divorce

The Europeanisation of International Family Law

“…Therefore, this principle should be abandoned in order to find a solution to such cases. 83 80 Explanatory Memorandum (MvT), Kamerstukken II 1979-1980 In cases of a single nationality.…”

“…In addition, the assertion that Dutch law is applied in the majority of international divorce cases may be doubted: the case law cited above shows that Dutch courts regularly apply foreign law. 173 But why, then, will Article 1 CLAD be amended in such a way that the application of Dutch law (the lex fori) is the primary choice of law rule? 170 Van Maas de Bie rightly argues that it is not desirable to favour the application of the lex fori, considering the thought of neutrality which underlies the field of private international law and by virtue of which all legal systems are equally eligible for application.…”

“…Vonken 2006, p. 119 concludes that in the beginning of the 21st century decisional harmony is still one of the 'Leitmotive' of private international law. 83 The prevailing view is, however, that only few people do calculate in this sense, unless a great deal of money is involved. a systematic application of these common rules is needed.…”

“…82 Unified choice of law rules ensure that the same law will be applied to a certain situation, irrespective of the competent court seised. 83 According to Rüberg 2005, p. 64, two distinct forms of forum shopping can be distinguished. 83 The prevailing view is, however, that only few people do calculate in this sense, unless a great deal of money is involved.…”

“…111 With respect to international family law, the case law of the ECJ on the interpretation of the concept of Union citizenship has led to two important decisions: Garcia Avello 112 and Grunkin-Paul. 116 Yet in Grunkin-Paul the persons involved had only one nationality (the German); the refusal to recognise a validly registered name under the law of a Member State (Denmark), the country in which the child was born, could therefore not constitute discrimination on grounds of nationality. 114 In the two cases mentioned above, in which the ECJ intervened to amend a limping legal relationship, the Court held that although, as Community law stands at present, the rules governing a person's surname are matters coming within the competence of the Member States, the latter must none the less, when exercising that competence, comply with Community law.…”