Ireland opts out of scheme to harmonise divorce laws


IRELAND OPTED out yesterday when European justice ministers cleared the way for the EU to deploy new family law powers by allowing a group of countries to recognise each other’s divorce laws.

Fourteen member states are participating in a scheme to apply harmonised rules when international couples choose the legal code under which they divorce or enter a legal separation. The Government is not taking part.

The scheme is the first in which a core group of European countries are applying a procedure to move forward together in a common EU initiative without all member states taking part.

“If we were to participate in this, it would mean that we would have to implement foreign divorce laws in our own courts and that’s not something I think we want,” Minister for Justice Dermot Ahern said after EU ministers met in Luxembourg yesterday.

“The fact that we had a referendum and had legislation strictly based on the referendum that the people voted on, I don’t think we can change that unless we have another referendum, obviously.”

The recently enacted Lisbon Treaty makes it easier for countries to adopt this procedure. Although there was scope under previous treaties to go down such a path, they never did.

The plan is designed to increase legal certainty over cases in which spouses from different countries divorce or enter a legal separation, a complex legal area.

There were more than 1 million divorces in the 27 EU countries in 2007, 140,000 of which had an international dimension.

The proposal allows both spouses to know in advance which law is applicable to their divorce, increasing flexibility by giving them the possibility of choosing which legal code should apply.

Both spouses will be required to express in writing which legal code should be applied in their divorce. This could make it harder for one spouse to pursue a divorce in a jurisdiction more likely to make an advantageous ruling, a practice known as “forum shopping.”

The countries taking part in the enhanced co-operation procedure are Spain, Italy, Hungary, Luxembourg, Austria, Romania, Slovenia, Bulgaria, France, Germany, Belgium, Latvia, Malta and Portugal.

At the same meeting yesterday, Mr Ahern said the Government would opt in to EU plans to toughen European laws against trafficking in humans and the sexual exploitation of children.

The Government chose not to opt in to a plan from Spain’s EU presidency to develop European protection orders, a form of legal injunction which compels an abuser to stay away from someone and places that person frequents.

Mr Ahern said the Government favoured such a plan but not under criminal law as proposed by Spain, as it would be legally unsound. This is an area usually governed by civil law, leading several member states to oppose the Spanish plan.