10 EU countries in joint move on divorce

Divorce is back on the EU agenda as Justice Commissioner Viviane Reding is today expected to formally propose that member states adopt legislation aimed at streamlining the interpretation of divorce rules.

The proposal is intended to make it simpler for couples to get a divorce if they are living in a different country from the one where they originally got married.

A similar attempt was made by the European Commission in 2005 but the proposal failed to be adopted due to opposition by a number of member states, including Malta.

Ms Reading will re-launch the initiative under the so-called enhanced cooperation mechanism in response to a request by 10 member states.

This measure would constitute the first use of the mechanism, a last resort that allows a group of member states to set standards within the EU framework without engaging all member states.

In contrast to her predecessor, Jacques Barrot, who disagreed with putting the initiative within this mechanism, Ms Reding supports the initiative of the 10 member states, which include Luxembourg, her home country.

Although she has said she prefers having EU-wide legislation, she feels enhanced cooperation is the only feasible option at present. "I hope one day it will be 20 member states and finally 27 member states but, in the meantime, let's go ahead and let's not wait," she said.

Even if approved, the legislation will not mean Malta has to introduce divorce as this remains something the country alone can decide. However, it can provide domestic courts in the 10 countries with criteria to determine which national law should apply in international divorce cases. It would affect couples of different nationalities, those living apart in different countries, or living together in a country other than their home country.

The aim is to prevent litigation shopping, where spouses pursue a divorce in a jurisdiction where they feel they will get the most advantageous settlement. The 10 countries involved are Austria, Bulgaria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain.

Despite being an enhanced cooperation initiative, the proposal will still need the endorsement of all 27 member states and this is already being touted in Commission quarters as "problematic" given that the original proposal was botched.

In discussions on that proposal, Malta had obtained an opt-out guarantee, meaning the law would not have applied to its courts. This time, despite not being directly affected, Malta has already signalled its opposition to having the initiative put under the enhanced cooperation option provided by the EU Treaties.

"Malta, together with a number of countries, including the UK, Finland and Sweden, does not seem keen on this proposal even if it does not apply to it as it thinks enhanced cooperation shouldn't be used in issues relating to the family court," sources close to the Commission said.

"Although the Commission is attempting to satisfy the 10 member states that requested this proposal, we are highly sceptical about the response of the other 17 member states," the sources said.

During an informal meeting of Justice Ministers earlier this year, when the possibility of reintroducing the proposal was first mentioned, Justice Minister Carmelo Mifsud Bonnici expressed caution. "We don't think there should be a two-speed approach on such a sensitive issue once the 27 member states did not agree on the proposed directive," he told the meeting.

Speaking to The Times, Dr Mifsud Bonnici said that, judging by the discussions held during the informal Council meeting, many member states were against the approach now being proposed. Even the European Parliament was against enhanced cooperation in this area, he said.

Malta is the only member state that does not allow divorce.