1. Private International Law
Academic Year 2018/2019
Pietro Franzina –

2. Family matters: an overview
The EU legal framework in a nutshell
matrimonial matters (divorce, legal separation)
jurisdiction: Regulation No 2201/2003 (Brussels II bis)
applicable law: Regulation No 1259/2010 (Rome III)
matters of parental responsibility (custody, right to visit)
applicable law: Hague Convention of 19 October 1996
family maintenance
jurisdiction: Regulation No 4/2009
applicable law: Hague Protocol of 23 November 2007
matrimonial property regimes
jurisdiction and applicable law: Regulation 2016/1103 and 1104
Matters outside the scope of existing EU rules
law applicable to the validity of marriage, the name of the spouses, filiation, etc.

3. Jurisdiction in respect of divorce and legal separat.
The Brussels II bis Regulation
the general rule (Article 3)
jurisdiction lies with the courts of the MS where
the spouses are habitually resident, or
the spouses were last habitually resident, insofar as one of them still resides there, or
the respondent is habitually resident, or
in the event of a joint application, either of the spouses is habitually resident, or
the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question
jurisdiction also lies with the courts of the MS of the nationality of both spouses
no choice-of-court agreement is possible
a person who is either a national of a MS or habitually resides in a MS can only be sued in another MS in accordance with EU rules; all other persons may be sued in a MS also in accordance with the domestic rules of the forum, where no court of a MS has jurisdiction in accordance with EU rules

4. The law applicable to divorce and legal separation
The Rome III Regulation
some general features: enhanced cooperation, universal character
choice of law by the spouses (Article 5)
the object of the agreement
the law of the State where the spouses are habitually resident at the time of the agreement
the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time of the agreement
the law of the State of nationality of either spouse at the time of the agreement
the law of the forum
the form and timing of the agreement
the law applicable absent a choice (Article 8)
limitations (Article 10 and 13)
the law makes no provision for divorce or is discriminatory > the lex fori applies
‘Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation’