Choice of law provisions on the law applicable to divorce and legal separation
Applicable law to divorce and legal separation in absence of an agreement
Where no applicable law is chosen, Article 8 applies.
According to Article 8 divorce and legal separation are subject to the law of the state:
- where the spouses are habitually resident at the time the court is seized; or, failing that
- where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that
- of which both spouses are nationals at the time the court is seized; or, failing that
- where the court is seized.
Habitual residence should be given an autonomous meaning. The ECJ dealt with the notion in connection to the jurisdiction rule on parental responsibility established in article 8 of the Brussels II bis - Regulation. According to the ruling in case C-523/07 habitual residence corresponds to the place which reflects some degree of integration in a social and family environment. It is for the national court to establish the habitual residence, taking account of all the circumstances specific to each individual case.
According to Paragraph 22 of the Preamble the question of how to deal with cases of multiple nationalities should be left to national law, in full observance of the general principles of the European Union. Provisions of national law that give preference to the nationality of the forum might cause difficulties if the spouses hold the nationality of two member states since such preference could be considered to go against the principle of non discrimination on the grounds of nationality.
