Regulation 1259/2010 on the law applicable to divorce and legal separation in the light of the protection of fundamental rights and recent jurisprudential decisions, by Serena Cancellieri, PhD student - UNICAM

12 July 2021

It seems undisputed to believe that private international law is "the law of tolerance and pluralism".

Precisely because of the characteristic of allowing, through its application even to heterogeneous systems, to find a uniformity in the applicable law.

This characteristic of openness can be found in many European Regulations, as well as in Regulation 1259/2010, which lays down uniform rules to identify the law applicable to separation and divorce.

Moreover, in a sector so sensitive to social, cultural and religious traditions, a unified approach to the discipline of separation and divorce, acquires fundamental connotations, as enshrined in Article 22 of the Charter of Fundamental Rights of the European Union 'the Union  respects cultural, religious and linguistic diversity'.

However, precisely in the light of the desirable achievement of respect for diversity, in a unitary context such as that of enhanced cooperation, it may happen that in the implementation phase, cultural and religious identity in family matters can be more easily exposed to normo-cultural conflicts.

Precisely for this reason, Regulation 1259/2010 explicitly reiterates the need to protect fundamental rights, as for example in Recital 16: "the law chosen by the spouses must comply with the fundamental rights recognised by the Treaties and the Charter of Fundamental Rights of the European Union"; 

In recital 30: "this Regulation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights”, or article 21 of this Regulation which "prohibits any form of discrimination based on gender, race, skin color, ethnicity, genetics characteristics, language, religion, beliefs, political opinions, belonging of a national minority, property, birth, disability, age or sexuality orientation”.

Regulation 1259/2010, which contains rules relating to the law applicable to divorce and legal separation, was adopted through the enhanced cooperation mechanism to complete Regulation (EC) no. 2201/2003, which contains rules relating to jurisdiction, the recognition and application of divorce and personal separation judgments (as well as in matters of parental responsibility).

In light of theese considerations made, the most important innovation introduced by Regulation 1259/2010 is the provision of a right of choice by the spouses of the applicable law in the case of attenuation or dissolution of the marriage bond (Article 5).

This faculty of the spouses is not unlimited, but is limited on the basis of a criterion of proximity to the life of the couple, so as to be able to be governed by the law of a State with which both spouses have a strong connection of life.

So that it can be governed by the law of a State with which both spouses have a strong life connection; this underlining the preference given by the regulation to the residence criterion, precisely for the purpose of integrating foreign spouses into the social reality of the country in which they live, as also confirmed in recent judgments.

In the absence of choice of the parties, in fact, the regulation pursuant to Article 8 provides that the law of the State is applied, according to the above-mentioned criteria.

In this regard there is a very recent judgment of the Court of Messina, Sect. I, 26.03.2021, n.639 which states that "the jurisdiction must be established pursuant to art. 3 of the aforementioned Reg. 1259/ 2010, according to which the authority where the spouses last habitually reside (if one of them still resides there) is competent to decide on matters relating to divorce, legal separation of spouses and annulment of marriage".

Another "limit" that meets the autonomy of spouses within the Regulation is that established by art.12, that is, public order.

This restriction actually protects the very autonomy of spouses.

It is a public policy that operates ex post with respect to the functioning of the conflict rule.

This policy varies from State to State due to the diversity of principles that are fundamental in the different legal systems, destined to change over time.

The effectiveness of the public order limit protects the internal legal systems by safeguarding the fundamental principles of the State of the forum.

In fact, the regulation allows the parties to choose, under the conditions laid down by the same, the law applicable to divorce or legal separation which may also be that of a third-Country with which the spouses have established a life link.

In this sense, the limit on public order is particularly useful where there is an opening to foreign legislation with values different from those of the Member States.

It may happen, for example, that a woman from a non-EU country living with her husband in a Member State gives her consent to choose the law of the country of origin has less elements of discrimination against her.

In such cases, the court seised could consider that the agreement on the choice of law made by the spouses, as being prejudicial to the woman, produces effects contrary to public order and therefore prevent its implementation, for application of the connecting criteria pursuant to article 8, including the lex fori.

A recent judgment of the Court of Cassation Sec. I, 07/08/2020 n.16804 stating that "the decision of repudiation issued abroad by a religious authority cannot be recognized within the Italian legal system".

This ruling is based, to the contrary, on a previous judgment of the EU Court of Justice of 20 December 2017 C-372/16, Soha Sahyouni c Raja Mamisch, where the Court stated that "divorce resulting from a unilateral declaration by one of the spouses before a religious tribunal, such as that in the main proceedings, does not fall within the scope ratione materiae of that regulation".

Finally, in order to strengthen the protection of fundamental principles, the Legislator has inserted Article 13, particularly discussed by the Commission during the approval, which deals with the differences between national laws.

In the event that a State belonging to the cooperation does not provide for the institution of divorce in its legal system, it will not be obliged to implement it under the Regulation (in this sense EU Court of Justice, Sect. I, 16/07/2020, n.249).

Finally, it should be remembered that for EU countries, the limit of public order is also constitute by the c.d. "public order community", to be considered included in that of the individual national legal systems.

“Dulcis in fundo” it seems appropriate to cite a recent judgment of the Court of Cassation.

In this judgment is expected that "the compatibility with public order of foreign judgments involves a comprehensive assessment of the fundamental principles of the Constitution, of supranational principles, and also of ordinary laws and codicistic norms" (Civil Cassation, first section, with sentence no.16804, 07/08/2020).

Following the considerations made, although several years after the entry into force of the Regulation, it is clear its innovation and fundamental importance in the complex and heterogeneous landscape subject to continuous changes such as the family.

In conclusion, following an examination of recent case law, Regulation 1259/2010 seems to have a protective and significant implementing scope in the light of the full realization of fundamental rights.