Choice of law provisions on the law applicable to divorce and legal separation
Laws that can be chosen
Under Article 5 the spouses may agree to designate the law applicable to divorce and legal separation, provided that they choose among the following laws:
- the law of the State where the spouses are habitually resident at the time the agreement is concluded; or
- the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or
- the law of the State of nationality of either spouse at the time the agreement is concluded; or
- the law of the forum.
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 Regulation Brussels II bis. 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.
If one or both of the spouses hold the nationality of more than one state, spouses can choose the law of any of the nationalities they hold.
The agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized. During the course of the proceeding an agreement might still be possible, if the law of the forum so provides and under the condition set out in that law (see Question A. 5 of the national sections).