The European Commission is expected to announce a set of proposals tomorrow aimed at revamping and harmonising divorce laws across its 25 member States.
The proposals, which are expected to be met with resistance from Malta and Ireland in particular, would allow, for example, Maltese with a spouse of another EU nationality to seek a divorce under the laws of the spouse’s home country. The proposals would not affect marriages of Maltese couples that have been registered in Malta.
They would also allow couples from other EU States residing in Malta the facility to apply to the Maltese courts for a divorce under the laws of their home country. In the same vein, they would allow Maltese living in another member State to seek a divorce under the laws of that country.
The proposals aim to harmonise EU divorce law to a certain extent, so as to clarify a number of nationality-related ambiguities that have become more and more common as EU citizens become increasingly mobile in their lifestyles.
These deal mainly with determining which nation’s divorce law should be applied for divorces of people who have married a person of another European nationality, or who are no longer resident in their home country.
The Commission is also expected to propose the concept of allowing couples living abroad and seeking a divorce to choose the legal jurisdiction to be applied to their case – that of their home country or of their country of residence.
But the proposals are expected to draw fire from a number of fronts, not least of all because they would undoubtedly prove complex and expensive. Maltese judges, and those of other member States, would have to be trained in the widely-varied divorce laws of all the other 24 member States.
While certain member States such as Ireland and the UK secured an opt-out clause under the EU’s Amsterdam Treaty, Malta has no such option to avail itself of.
Instead, Malta could very well veto the proposals at Council of Ministers level, where a unanimous vote would be required for the proposals to move on to the next phase of becoming enshrined in EU law.
Maltese law does not allow for divorce, but recognises divorce judgments given by competent foreign courts. Legal separation is also recognised and marriages can be annulled by canonical courts, whose decisions produce civil effects.
Ireland is also expected to put up resistance. While Irish law provides for divorce, it only does so after a mandatory four-year separation period.
Most other member States are said to favour the proposals and have replied positively to a green paper on the subject, known as Rome III, published last year and to which member States have submitted their feedback.