Regulation 2010/1259 - Implementation of enhanced cooperation in the area of the law applicable to divorce and legal separation - Main contents

SUMMARY OF:

Council Regulation (EU) No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation

WHAT IS THE AIM OF THE REGULATION?

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  It establishes a single set of rules to determine which national law should apply to proceedings for divorce or legal separation involving spouses who are of different nationality, live in a country different from their country of nationality or no longer live in the same European Union (EU) Member State.
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  It complements Regulation (EC) No 2201/2003 (see summary), which sets out rules to determine in which court an application for divorce or legal separation must be filed.

KEY POINTS

Participating countries

The regulation applies to 17 Member States which participate in enhanced cooperation on this issue: Belgium, Bulgaria, Germany, Estonia, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Austria, Portugal, Romania, and Slovenia.

Other Member States can join at any time.

When does the regulation apply?

It applies where there is a conflict of national laws in cases of divorce and legal separation, i.e. where several national laws could apply to the same divorce or legal separation (for example, the national law of the country of the spouses' nationality, or the national law of the country of their main place of residence).

It does not apply to questions of:

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  the legal capacity of natural persons;
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  the existence, validity or recognition of a marriage;
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  the annulment of a marriage;
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  the name of the spouses;
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  the property consequences of the marriage;
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  parental responsibility;
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  maintenance obligations;
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  trusts or successions.

Choice of law

Spouses may make a formal agreement choosing which national law will apply to their divorce or legal separation as long as it is either the law of:

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  the country where the spouses have their main place of residence at the time the agreement is concluded; or
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  the country where the spouses had their last main residence, in so far as one of them still resides there at the time the agreement is concluded; or
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  the country of nationality of either spouse at the time the agreement is concluded; or
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  the country in which the case is brought.

An agreement between the spouses may be made and changed at any time up to when the case comes before the court.

Where no choice of law is made

If the spouses do not choose the law that should apply to their divorce or legal separation, the case will be subject to the law of the country:

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where the spouses have their main residence at the time the case comes before the court; or, if not

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where the spouses had their last main residence, provided that the period of residence did not end more than 1 year before the case came before the court, in so far as one of the spouses still lives in that country at the time the case comes to court; or, if not

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of which both spouses are nationals at the time the case is brought before the court; or, if not

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in which the case is brought.

If the national law applicable to the case does not include a divorce law or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the country in which the case is brought will apply.

FROM WHEN DOES THE REGULATION APPLY?

It has applied since 21 June 2012.

BACKGROUND

Two other regulations set out rules to establish the applicable law where there is a conflict of national laws. Regulation (EC) No 593/2008 (see summary) applies to contractual obligations, whilst Regulation (EC) No 864/2007 (see summary) covers non-contractual obligations excluding family relationships and the liability of a state.

Regulation No 1259/2010, which contains rules on the applicable law to divorce and legal separation, was adopted through enhanced cooperation to complement Regulation (EC) No 2201/2003, which contains rules on jurisdiction and recognition and enforcement in respect of divorce and legal separation (as well as on parental responsibility matters).

For further information, see:

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  Divorce and separation – Information on divorce law applicable in cases of international couples in the EU (European Commission)
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  Divorce and legal separation (YourEurope)

MAIN DOCUMENT

Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 343, 29.12.2010, pp. 10-16)

RELATED DOCUMENTS

Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, pp. 1-115)

Commission Decision (EU) 2016/1366 of 10 August 2016 confirming the participation of Estonia in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 216, 11.8.2016, pp. 23-25)

Commission Decision 2014/39/EU of 27 January 2014 confirming the participation of Greece in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 23, 28.1.2014, pp. 41-42)

Commission Decision 2012/714/EU of 21 November 2012 confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 323, 22.11.2012, pp. 18-19)

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, pp. 1-29)

Successive amendments and corrections to Regulation (EC) No 2201/2003 have been incorporated in the basic text. This consolidated version is for reference purposes only.

last update 20.01.2016

This summary has been adopted from EUR-Lex.