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Divorce and legal separation

When a married couple decides to separate permanently, one or both spouses together will generally institute divorce proceedings. In most countries divorce is decided by a court, and that court's judgment dissolves the marriage.

When the two spouses wishing to divorce are of different nationalities, have lived in different Union countries during their marriage or no longer live in the same Union country, they need to know with which courts or authorities they must apply for divorce and what national law those courts or authorities will apply to rule on their divorce.

The Union has adopted rules to work out with which court spouses should file an application for divorce. Union rules also allow a divorce pronounced in one Union country to be easily recognised in another Union country and have effect there. These rules are contained in Regulation No 2201/2003, the Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, which has applied since 1 March 2005 (this Regulation is commonly known as the Brussels IIa Regulation). Anyone can rely on these rules before a court.

Regulation No 2201/2003 does not determine which substantive national law the courts or authorities should apply to rule on the divorce. At the end of 2010, the Union adopted Regulation No 1259/2010 on the law applicable to divorce and legal separationpdf (this Regulation is commonly known as the Rome III Regulation). This Regulation allows spouses to agree on the national law that should apply to their divorce. If the couple does not agree on the law, the Regulation lays down rules enabling the court or authority to determine which national law should apply to the divorce. In this way, the Regulation brings legal certainty to international couples wishing to divorce.

Currently, Regulation No 1259/2010 applies in 16 Union countries: Austria, Belgium, Bulgaria, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain. The Regulation will also apply in Estonia as of February 2018. Union countries that do not participate in this Regulation continue to apply their own rules to determine which national law should apply to a divorce.

Besides the separation of the spouses, a divorce will lead to a reorganisation of the relationship between the spouses and with any children they may have in common. It will also lead to a division of the assets owned in common by the spouses and, if necessary, to the payment of a contribution or maintenance by one spouse to the other or to their children. The Union has also adopted rules on all these aspects to facilitate the lives of international families..