Due to wide disparities between the 27 national legal systems in European Union member states, it’s possible for a savvy divorce shopper to find a jurisdiction with divorce laws that are more advantageous to him or her than to his or her partner.
There are tales of people seeking out jobs in certain states just to establish sufficient ties to use the divorce laws there. When spouses are from different countries, live in a third, and perhaps own property in a fourth, it's even more complicated.
The EU estimates that, in its population of 500 million people, there are some 16 million marriages between people of different nationalities and about 15 percent of those unions — or about 170,000 — go bust each year.
And shopping around for the best divorce jurisdiction "is really common,” said Lisa MacDonald, a senior family-law attorney with Woolley and Co Solicitors in London. “There’s sort of a race on which country the proceedings are in. Jurisdiction battles can be really costly and lengthy before you’ve even kicked off proceedings.”
The variations are enormous. It currently takes four years to get a divorce in Ireland, but just six months in Finland. In Malta, divorce isn’t allowed at all. Some member states had been seeking to streamline cross-border divorces under EU auspices but because of the huge differences in procedure and philosophy, years of negotiations failed to achieve consensus on how to do that.
So last year 14 states joined in an “enhanced procedure,” allowing members who wanted to adopt the legislation to move forward without all 27 doing so. (It is the first time the procedure has been used.) After final approval from heads of state in December, Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain have agreed to follow new regulations giving divorcing couples a choice as to which country's rules apply in cases where they have different nationalities, live apart in different countries or together somewhere other than their home states.
Now, instead of a richer or better-connected spouse being able to manipulate the system with a “rush to court,” EU legal officials say the applicable law will be determined based on common rules, regardless of where an initial filing may have been made. If the couple can’t agree on a jurisdiction, it will be determined based on their current residence, their last residence if one still lives there, the nationality of one of the spouses or the law of the court before which the matter is brought.
EU Justice Commissioner Viviane Reding hailed the deal for clearing up complications in an already difficult experience.
It “will make life easier for couples facing international divorces, reduce stress and help to protect the weaker spouse,” she said, adding that it is “also a milestone for EU cooperation in difficult legal areas, which shows that we can still deliver pragmatic solutions to problems in everyday life.”
MacDonald said the children of divorce will really benefit from what she expects will be swifter divorce proceedings in participating countries.
Though EU officials have repeatedly emphasized that the “proposal does not in any way harmonize national divorce laws or practices, which remain very diverse for cultural and historical reasons” — Malta being the most obvious outlier — there are almost as many member states who chose to stay outside the agreement as are participating.
For example, heavily Catholic Ireland chose not to participate. Irish Justice Minister Dermot Ahern said the procedure “would mean that we would have to implement foreign divorce laws in our own courts and that’s not something I think we want.”
But the Nordic countries have other reasons for keeping divorces governed domestically. Finland says it prefers to apply its own legislation, in which it is not necessary to find either party at fault, and Sweden worries that immigrant women would be disadvantaged if courts in other EU nations allowed Islamic law to be followed in some cases.
In an EU survey last fall, participants from Slovakia, France, Greece and Belgium were most supportive of the EU taking initiative in cases of cross-border divorce, with about 80 percent agreeing in each country. Sweden, Ireland, Malta, the United Kingdom and Poland were at the other end of the spectrum, with less than 60 percent agreeing the EU should have a role. Spain nonetheless convinced Malta — whose prime minister recently repeated that he had no intention of entertaining a change in the law — to join the “enhanced procedure,” since domestic law is not affected by it.
Meanwhile, Lisa MacDonald’s phone has been ringing off the hook this month with roughly three times as many divorce inquiries as usual.
“We always anticipate a January rush but the past few years have not been quite this busy,” she said, surmising that dire economic straits may have brought down more relationships this year.
But divorce shoppers better make their deals early; the new regulations take effect next year.