What Effect Does European Private International Law on Cross-border Divorce Have on National Family Laws and International Obligations of the Member States?

Abstract

With the number of cross-border divorces in the EU soaring, the adoption of the 'Brussels II bis Regulation' and of the 'Rome III Regulation' seems like a logical step. Yet, discussion-provoking is the fact that the interaction between Brussels II bis and Rome III has resulted in Malta being forced to introduce the institution of divorce into its substantive family law. This shows that EU law may have some impact on the national family laws of the Member States in the future as well. For instance, Member States which have not yet legalised same-sex marriages may eventually be forced to do so. This paper argues why this acknowledgment is especially confirmed by Article 13 of Rome III. Besides, a Member State which participates in Rome III, but whose law does not provide for the institution of legal separation may be forced to deal with this institution. Moreover, although by using the public policy rule Member States may avoid the recognition of a Muslim divorce pronounced in a third country, problematic issues may be caused by the mufti divorce pronounced in Greece, which according to Brussels II bis could be entitled to an automatic recognition in the other Member States. Furthermore, this contribution suggests that, if according to Brussels II bis Greece automatically recognises a crossborder divorce of a Greek Muslim couple from Western Thrace with a habitual residence in, for instance, France, to which French law has been applied instead of the Sharia, Greece breaches its international obligations. Thus, this paper argues that the application of European private international law may create an awkward situation, in which a Member State may be forced to breach its international obligations in order to fulfil its obligations under EU law. Therefore, this contribution suggests an amendment to Article 22 of Brussels II bis.