2023. 01. 28

S. Ambroziūnaitė. Out of Court Divorce and the Main International Issues

In Europe, it has long been customary that only a court could dissolve a marriage, both in the event of a dispute between the spouses and when they reached a mutual agreement regarding all the legal consequences of the divorce. However, in order to reduce the workload of the courts, to reduce the duration and costs of divorce, in Europe, out of court divorce have been gaining ground recently. The Republic of Lithuania is not an exception either, where from 2023 January 1 spouses can dissolve the marriage at a notary public, avoiding the court proceedings. This new function of the notary will give individuals the opportunity to divorce faster, without going to court, with dignity, and of course - more confidentially. Currently, it is possible to divorce out of court in Spain, Greece, Latvia, Estonia, Slovenia and some other countries of the European Union.

If all the parties are from one country and are living in that country then generally the divorce is heard by the courts of that country, and a decision is made and implemented in accordance with the laws of that country. Problems arise when the parties are not living in the same country or are not nationals of the same country. It may not be clear which country’s courts should make the decisions, which country’s laws should be applied and how the decisions made in one country can be implemented in another.

It is clear that, due to lower time and financial costs, out of court divorce will establish itself in the majority of European Union countries in the future. Since out of court divorce is quite new and still is just making its way in the Europe, reasonable questions arise, when we are speaking about international out of court divorce too:

  1. do the jurisdictional rules provided for in the Brussels IIb Regulation apply to out of court divorce?
  2. what law is applicable in international out of court divorce? Could we apply the regulation of Rome III?
  3. can a out of court divorce be recognized and enforced in other European Union states?

The main problem comes from the different models (public and private) of out of court divorce in different countries. The above-mentioned problem is best reflected in the recent cases examined by the ECJ.

For example, the Sahyouni case dealt with a private (out of court) divorce registered by a religious institution in a third country. The main question for ECJ was to answer if the regulation of Roma III recognizes a divorce issued by a third country religious authority?

In this case ECJ stated that private divorces are not explicitly excluded from the scope of Roma III. EU legislature had in mind only situations in which divorce is pronounced by a national court or by, or under the supervision of, another public authority, and that, accordingly, it was not the intention of the EU legislature that that regulation should be applicable to other types of divorce, such as those which, as in the present case, are based on a ‘private unilateral declaration of intent’ pronounced before a religious court.

The other example, is Senatsverwaltung case, dealt with a public out of court divorce where the request for preliminary ruling has been made to answer whether Article 2(4) of the Brussels IIa Regulation must be interpreted as meaning that a divorce decree drawn up by a civil registrar of a Member State, containing a divorce agreement concluded by the spouses and confirmed by them before that registrar in accordance with the conditions laid down by the legislation of that Member State, constitutes a ‘judgment’ within the meaning of Article 2(4) of that regulation.

In this case ECJ stated that the Brussels IIa Regulation covers only a divorce which is pronounced either by a national court or by, or under the supervision of, a public authority, thereby excluding mere private divorces, such as a divorce resulting from a unilateral declaration of one of the spouses before a religious court.

Therefore, where a competent extrajudicial authority approves, after an examination as to the substance of the matter, a divorce agreement, it is recognised as a ‘judgment’, in accordance with Article 21 of the Brussels II a. Whereas other divorce agreements which have binding legal effects in the Member State of origin are recognised, as the case may be, as authentic instruments or agreements, in accordance with Article 46 of the Brussels IIa Regulation.

It is important to mention that Brussels IIb Regulation, which recast the Brussels IIa, has special recognition rules, Art. 64 et seq, it is lex specialis for all new out-of-court divorces.

So, in conclusion, we could see the EU legislator's intentions to include out of court divorce as a “real alternative” to the court ones. But still we require a coherent, complete concept, especially when we are speaking about private out of court divorce. It will create further issues in the future and require modifications of Brussels/Rome rules.