Scope of application
Regulation Rome III applies in situations involving a conflict of laws, that is in an international situation (see Articles 1.1 and 16). Its purpose is to determine the law applicable to divorce and legal separation. Annulment is not covered (Article 1.2c) and follows the rules in force in each Member state.
According to Paragraph (10) of the Preamble there should be consistency between Regulation Brussels II bis and Regulation Rome III. Rome III therefore only determines the law applicable to the dissolution or loosening of the matrimonial ties. Ancillary matters such as the name of the spouses, the property consequences of the marriage, parental responsibility, maintenance obligations, trusts or successions issues arising in connection to divorce or legal separation are not covered (Article 1.2).
Regulation Rome III does moreover not determine the law applicable to preliminary issues such as capacity to marry or the existence, validity or recognition of a marriage (Article 1.2).
The purpose of the Regulation is neither to harmonise substantive law nor to force any of the participating member states to recognise a union contracted as a marriage for the purposes of pronouncing a divorce or a legal separation. Therefore Article 13 clearly states that nothing in the Regulation obliges the courts of a participating member state whose law does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation. This provision is particularly relevant in connection to same sex marriages that can be validly contracted in some member states. The reference in article 13 to the particular situation in Malta (“Nothing in this Regulation shall oblige the courts of a participating member state whose law does not provide for divorce ...... to pronounce a divorce by virtue of the application of this Regulation“) has lost relevance in view to the recent introduction of divorce into Maltese law.
The Regulation applies irrespective of the nature of the court or tribunal seized. According to Article 3.2 the term ‘court’ shall cover all the authorities in the participating member states with jurisdiction in the matters falling within the scope of the Regulation.
The conflict of law rules, included in Regulation Rome III, are universal, that is the law designated by this Regulation applies whether or not it is the law of a participating member state (Article 4). The proof of the content of foreign law follows national procedural rules: in some member states the law is applied ex officio while in others the parties have to plead and prove the content of foreign law (for more information please see Question D. 5 of the national sections).
Regulation Rome III entered into force on the day after its publication in the Official Journal, that is on the 30th of December 2010. It is however applicable only since 21st June 2012.
The Regulation applies only to legal proceedings instituted as from 21 June 2012. For further transitional provisions especially in connection to agreements see Article 18.