The EC Green Paper on divorce is a wake-up call to the Government on family law in the EU, writes Carol Coulter, Legal Affairs Correspondent
"Chaos" is the term used by family law expert Geoffrey Shannon to describe the state of the law governing divorce in the EU. The Amsterdam Treaty committed member states to co-operation in civil matters, and these include family law. However, there is wide divergence among states on family law matters, so co-operation is difficult.
An attempt to provide for co-operation was made in a regulation called Brussels II. This allows for seven different grounds on which an EU citizen may seek a divorce in another EU state, including nationality, domicile and habitual residence. The court where the application is received then has the exclusive right to hear the case.
This could leave an Irish citizen, married to a citizen of another EU state, or whose spouse moves to another state, at a disadvantage. An Irish wife, for example, who remains living in Ireland when her husband moves to, say, Denmark, could find that her husband has obtained a divorce there after six months, despite the requirement of four years separation under Irish law. The protections built into Irish divorce law, requiring "proper provision" for dependent spouses and children, would not apply.
This situation could encourage "forum shopping", where people seek out the jurisdiction most advantageous to them or rush to court to get their application in first where it suits them best, thereby undermining any attempt at mediation.
Now the European Commission has given Ireland, and the other EU states, until September to come up with answers to a number of questions aimed at resolving some of the many anomalies arising out of Brussels II. The end of this particular line is some form of harmonisation of family law across the EU, with clear implications for family law in Ireland. A debate, which has not taken place so far on Brussels II, has become inevitable.
In an annexe to the Green Paper, the commission points out that there are significant differences between the member states' rules relating to both the grounds for getting a divorce and the procedures that apply.
All member states except Malta allow divorce. However, the basis on which a divorce is granted varies from mutual consent, to the irretrievable breakdown of the marriage, to a number of different marital offences ("fault-based" divorce), to a factual separation for periods ranging from six months to five years.
In addition, certain states provide for legal separation, while others do not.
This means that in Sweden, it is not necessary to cite any ground for divorce, and a unilateral divorce is granted immediately provided it is not contested and there are no children under the age of 16. In Ireland, a four-year separation is necessary, the court must be satisfied there is no reasonable hope of reconciliation, and proper provision is made for the other spouse and any children.
There are also differences in rules and procedures between different member states. All courts may dissolve marriages, but there are administrative procedures for divorce by consent in Portugal, Denmark and Estonia.
Differences also arise where an international couple is involved, who could each seek to apply the different laws of their own states.
Some member states allow for a variety of states' laws to apply, depending on the connection between the parties and the states in question. For example, if a Spanish couple sought a divorce in Belgium, they could seek it under Spanish law as the law of their common nationality.
This is based on a rule of "connecting factors" connecting the couple to a member state. Factors taken into account include both nationality and habitual residence.
However, in other states, including Ireland, the law of the jurisdiction applies irrespective of the nationality of the couple.
Thus a childless Swedish couple who moved here to work, and whose marriage broke down, who would expect to obtain a divorce by consent easily at home, would have to establish four years' separation here before an Irish court would grant a divorce.
The only alternative would be for one of them to move back home for a period in order to seek a divorce there, which would mean giving up their job and home in Ireland.
In the various meetings that have taken place to discuss this at EU level, there has been little enthusiasm for harmonising divorce law.
However, the commission is now seeking answers to 20 questions in the hope of getting some sort of common framework for dealing with anomalies that can arise.
This could well have far-reaching implications in Ireland, according to Geoffrey Shannon. "The concept of marriage must have an autonomous, single meaning under the regulations," he said. "Harmonisation means compromise."