Choice of law provisions on the law applicable to divorce and legal separation
Rules about substantive and formal validity
Articles 6 and 7 establish rules in connection to the substantive and formal validity of such agreements about the applicable law.
Article 6 of the Regulation establishes that the existence and validity of an agreement on choice of law or of any term thereof, shall be determined by the law which would govern it under the Regulation if the agreement or term were valid. However, a spouse may rely upon the law of the country in which he or she has his or her habitual residence at the time the court is seized in order to establish that he or she did not consent if it appears from the circumstances that it would not be reasonable to determine the effect of his or her conduct in accordance with the law governing the agreement.
The Preamble of the Regulation clearly points out that “the informed choice of both spouses is a basic principle of this Regulation”. It is stated under para. (18) that each spouse should know the legal and social implications of the choice of applicable law, since 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, the preamble says, judges in the participating 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.
According to Article 7 the agreement shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.
In some member states additional requirements may exist in relationship to such agreements particularly if they are included in for example a marriage contract. Additional formal requirements of the law of the participating member state in which the spouses have their habitual residence at the time the agreement are also applicable. If the spouses are habitually resident in different participating member states at the time the agreement is concluded and the laws of those states provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. If only one of the spouses is habitually resident in a participating member state at the time the agreement is concluded and that state lays down additional formal requirements for this type of agreement, those requirements shall apply. (see Question A. 6 of the national section for further information)
