Select Law Divorce
Ireland and UK have not ratified the Rome III Regulation. It operates by way of enhanced cooperation between other States. It creates uniform rules on divorce and separation and regulates the manner in which parties may agree to select the applicable law. It provides a hierarchy of rules in the absence of election. It relates only to the issue of applicable law.
Spouses may elect jointly, the law to apply to divorce or separation. It may designate the law applicable provided that it is one of
- the law of the place where the spouses are habitually resident at the time of the agreement;
- the law of the State where the spouses were last habitually resident, insofar as one of them still resides there at the time of agreement;
- the law of the State of the nationality of either spouse at the time of the agreement or
- the law of the forum.
Default
In the absence of a choice divorce and legal separation shall be 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 seised
Common law courts have not traditionally been willing to determine disputes in accordance with civil law principles which is a significant reason of why it has not been adopted.
The law designated is to apply whether or not it is the law of the participating State, where the EU States are outside Rome III and are governed by Brussels II.