(1)

The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union must adopt measures relating to judicial cooperation in civil matters having cross-border implications.

(1)

The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications , particularly when necessary for the proper functioning of the internal market .

(2)

Pursuant to Article 81 (3) of the Treaty on the Functioning of the European Union, the Council is to adopt measures concerning family law with cross-border implications .

(2)

Pursuant to Article 81 of the Treaty on the Functioning of the European Union, the measures in question are to include those aimed at ensuring the compatibility of the rules applicable in the Member States concerning conflict of laws .

(6)

Bulgaria, Greece, Spain, France, Italy, Luxembourg, Hungary, Austria, Romania and Slovenia subsequently addressed a request to the Commission indicating that they intended to establish enhanced cooperation between themselves in the area of applicable law in matrimonial matters and asking the Commission to submit a proposal to the Council for that purpose .

(6)

Belgium, Bulgaria, Germany, Greece, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal , Romania and Slovenia subsequently addressed a request to the Commission indicating that they intended to establish enhanced cooperation between themselves in the area of applicable law in matrimonial matters. On 3 March 2010 Greece withdrew its request.

(7)

On […] the Council adopted Decision […] authorising enhanced cooperation in the area of the law applicable to divorce and legal separation.

(7)

On 12 July 2010 the Council adopted Decision 2010/405/EU authorising enhanced cooperation in the area of the law applicable to divorce and legal separation.

(8)

According to Article 328(1) of the Treaty on the Functioning of the European Union, when enhanced cooperation is being established, it is to be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision. It is also to be open to them at any other time, subject to compliance with the acts already adopted within that framework, in addition to those conditions.

(8)

According to Article 328(1) of the Treaty on the Functioning of the European Union, when enhanced cooperation is being established, it is to be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision. It is also to be open to them at any other time, subject to compliance with the acts already adopted within that framework, in addition to those conditions. The Commission and the Member States participating in enhanced cooperation should ensure that they promote participation by as many Member States as possible. This Regulation should be binding in its entirety and directly applicable only in the participating Member States in accordance with the Treaties.

(9a)

The substantive scope and enacting terms of this Regulation should be consistent with Regulation (EC) No 2201/2003. However, it should not apply to marriage annulment. This Regulation should apply only to the dissolution or loosening of marriage ties. The law determined by the conflict-of-law rules of this Regulation should apply to the grounds for divorce and legal separation. Preliminary questions on issues such as legal capacity and the validity of a marriage, and on matters such as the effects of divorce or legal separation on property, name, parental responsibility, maintenance obligations or any other ancillary measures, should be determined by the conflict-of-law rules applicable in the participating Member State concerned.

(10)

In order to clearly delimit the territorial scope of this Regulation, the Member States participating in the enhanced cooperation must be specified.

(10)

In order clearly to delimit the territorial scope of this Regulation, the Member States participating in the enhanced cooperation must be specified in accordance with Article 1(2) .

(10a)

This Regulation should be universal, in the sense that its uniform conflict-of-law rules may designate the law of a participating Member State, the law of a non-participating Member State or the law of a State which is not a member of the European Union.

(11)

This Regulation should apply irrespective of the nature of the court or tribunal seised.

(11)

This Regulation should apply irrespective of the nature of the court or tribunal seised. Where applicable, a court should be deemed to be seised in accordance with Regulation (EC) No 2201/2003.

(12)

In order to allow the spouses to choose an applicable law with which they have a close connection or, in the absence of such choice, in order that that law might apply to their divorce or legal separation, the law in question should apply even if it is not that of a participating Member State. Where the law of another Member State is designated, the network created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (5) can play a part in assisting the courts with regard to the content of foreign law.

(12)

In order to allow the spouses to choose an applicable law with which they have a close connection or, in the absence of such choice, in order that that law may apply to their divorce or legal separation, the law in question should apply even if it is not that of a participating Member State. Where the law of another Member State is designated, the network created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (5) , as amended by Decision No 568/2009/EC of 18 June 2009 (6), could play a part in assisting the courts with regard to the content of foreign law.

(13)

Increasing the mobility of citizens calls for more flexibility and greater legal certainty. In order to achieve that objective, this Regulation should enhance the parties’ autonomy in the areas of divorce and legal separation by giving them a limited possibility to choose the law applicable to their divorce or legal separation. Such possibility should not extend to marriage annulment, which is closely linked to the conditions for the validity of marriage, and for which autonomy on the part of the parties is inappropriate.

(13)

Increasing the mobility of citizens calls for more flexibility and greater legal certainty. In order to achieve that objective, this Regulation should enhance the parties’ autonomy in the areas of divorce and legal separation by giving them a limited possibility to choose the law applicable to their divorce or legal separation.

(14)

Spouses should be able to choose the law of a country with which they have a special connection or the lex fori as the law applicable to divorce and legal separation. The law chosen by the spouses must be consonant with the fundamental rights enshrined in the Treaties and the Charter of Fundamental Rights of the European Union. The possibility of choosing the law applicable to divorce and legal separation should not harm the superior interests of the child.

(14)

Spouses should be able to choose the law of a country with which they have a special connection or the law of the forum as the law applicable to divorce and legal separation. The law chosen by the spouses must be consonant with the fundamental rights recognised in the Treaties and the Charter of Fundamental Rights of the European Union.

(15)

Before designating the applicable law, it is important for spouses to have access to up-to-date information concerning the essential aspects of national and Union law and of the procedures governing divorce and legal separation. To guarantee such access to appropriate, good-quality information, the Commission regularly updates it in the Internet-based public information system set up by Council Decision 2001/470/EC.

(15)

Before designating the applicable law, it is important for spouses to have access to up-to-date information concerning the essential aspects of national and Union law and of the procedures governing divorce and legal separation. To guarantee such access to appropriate, good-quality information, the Commission regularly updates it in the Internet-based public information system set up by Decision 2001/470/EC , as amended by Decision No 568/2009/EC .

(15a)

If the spouses are unable to agree on the applicable law, they should complete a mediation procedure including at least one consultation with an authorised mediator.

(16)

The informed choice of the two spouses is a basic principle of this Regulation. Each spouse should know exactly what are the legal and social implications of the choice of applicable law. The possibility of choosing the applicable law by common agreement should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an informed choice on the part of the two spouses concerning the legal implications of the choice-of-law agreement concluded.

(16)

The informed choice of the spouses is a basic principle of this Regulation. Each spouse should know exactly what are the legal and social implications of the choice of applicable law. The possibility of choosing the applicable law by common agreement should be without prejudice to the rights of, and equal opportunities for, the spouses. Hence judges in the participating Member States should be aware of the importance of an informed choice on the part of the spouses concerning the legal implications of the choice-of-law agreement concluded.

(17)

Certain safeguards should be introduced to ensure that spouses are aware of the implications of their choice. The agreement on the choice of applicable law should at least be expressed in writing, dated and signed by both parties. However, if the law of the participating Member State in which the two spouses have their habitual residence lays down additional formal rules, those rules must be complied with. For example, such additional formal rules may exist in a participating Member State where the agreement is inserted in a marriage contract.

(17)

Rules on material and formal validity should be defined so that the informed choice of the spouses is facilitated and that their consent is respected with a view to ensuring legal certainty as well as better access to justice. As far as formal validity is concerned, certain safeguards should be introduced to ensure that spouses are aware of the implications of their choice. The agreement on the choice of applicable law should at least be expressed in writing, dated and signed by both parties. However, if the law of the participating Member State in which the two spouses have their habitual residence at the time the agreement is concluded lays down additional formal rules, those rules should be complied with. For example, such additional formal rules may exist in a participating Member State where the agreement is inserted in a marriage contract. If, at the time the agreement is concluded, the spouses are habitually resident in different participating Member States which lay down different formal rules, compliance with the formal rules of one of those States would suffice. If, at the time the agreement is concluded, only one of the spouses is habitually resident in a participating Member State which lays down additional formal rules, those rules should be complied with.

(19)

Where no applicable law is chosen, and with a view to guaranteeing legal certainty and predictability and preventing a situation from arising in which one of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests, this Regulation should introduce harmonised conflict-of-laws rules on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses and the law concerned. These connecting factors have been chosen so that the divorce or legal separation proceeding is governed by a law with which the spouses have a close connection , and they are based first and foremost on the law of the spouses’ habitual residence .

(19)

Where no applicable law is chosen, and with a view to guaranteeing legal certainty and predictability and preventing a situation from arising in which one of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests, this Regulation should introduce harmonised conflict-of-law rules on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses and the law concerned. Such connecting factors should be chosen in such a way as to ensure that proceedings relating to divorce or legal separation are governed by a law with which the spouses have a close connection.

(19a)

Where this Regulation refers to nationality as a connecting factor for the application of the law of a State, the question of how to deal with cases of multiple nationality should be determined in accordance with national law, in full observance of the general principles of the European Union.

(19b)

Where the court is seised of an application to convert a legal separation into divorce and the parties have not made any choice as to the law applicable, the law which applied to the legal separation should also apply to the divorce. Such continuity would promote predictability for the parties and increase legal certainty. If the law applied to the legal separation does not provide for the conversion of legal separation into divorce, the divorce should be governed by the conflict-of-law rules which apply in the absence of a choice by the parties. This should not prevent the spouses from seeking divorce on the basis of other rules laid down in this Regulation.

(20)

In certain situations, such as where the applicable law makes no provision for divorce or where it does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the court seised should nevertheless apply.

(20)

In certain situations, such as where the applicable law makes no provision for divorce or where it does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the court seised should nevertheless apply. This should, however, be without prejudice to the public policy clause (ordre public).

(21)

Considerations of public interest should allow courts in the Member States the opportunity in exceptional circumstances to disregard the application of foreign law in a given case where it would be manifestly contrary to the public policy of the forum. However, the courts should not be able to apply the public-policy exception in order to disregard the law of another Member State when to do so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination.

(21)

Considerations of public interest should allow courts in the Member States the opportunity in exceptional circumstances to disregard the application of a provision of foreign law in a given case where it would be manifestly contrary to the public policy of the forum. However, the courts should not be able to apply the public-policy exception in order to disregard a provision of the law of another State when to do so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination.

(21a)

Where this Regulation refers to the circumstance that the law of the participating Member State whose court is seised does not provide for divorce, this should be interpreted as meaning that the law of that Member State does not encompass the institution of divorce. In such a case, the court should not be obliged to pronounce a decree of divorce by virtue of this Regulation. Where this Regulation refers to the circumstance that the law of the participating Member State whose court is seised does not deem the marriage in question valid for the purposes of divorce proceedings, this should be interpreted as meaning inter alia that such a marriage does not exist under the law of that Member State. In such a case, the court should not be obliged to pronounce a decree of divorce or order a legal separation by virtue of this Regulation.

(22)

Since there are States and participating Member States in which two or more systems of law or sets of rules concerning matters governed by this Regulation coexist, there should be a provision governing the extent to which this Regulation applies in the different territorial units of those States and participating Member States.

(22)

Since there are States and participating Member States in which two or more systems of law or sets of rules concerning matters governed by this Regulation coexist, there should be a provision governing the extent to which this Regulation applies in the different territorial units of those States and participating Member States , or the extent to which this Regulation applies to different categories of persons of those States and participating Member States .

(22a)

In the absence of rules designating the applicable law, spouses choosing the law of the State of the nationality of one of them should at the same time indicate, where the State whose law is chosen comprises several territorial units each of which has its own system of law or a set of rules in respect of divorce, which territorial unit’s law they have agreed upon.

(a)

the legal capacity of natural persons;

(b)

the existence, validity or recognition of a marriage;

(c)

the annulment of a marriage;

(d)

the name of the spouses;

(e)

the property consequences of the marriage;

(f)

parental responsibility;

(g)

maintenance obligations;

(h)

trusts or successions.

(a)

any reference to habitual residence in that State shall be construed as a reference to habitual residence in a territorial unit of that State,

(b)

any reference to nationality shall be construed as a reference to the territorial unit designated by the law of that State, or, in the absence of relevant rules, to the territorial unit chosen by the spouses or, in the absence of such a choice, to the territorial unit with which the spouse or spouses has or have the closest connection.

(a)

the formal rules applicable to agreements on the choice of applicable law; and

(a)

the formal requirements applicable to agreements on the choice of applicable law pursuant to Article 3b (2) to (4) ; and