Rome III – Choice of Law in divorce: Is the Europeanization of Family Law Going Too Far?

摘要

With a proposal for a Council Regulation amending Regulation EC No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters1 (Rome III), which was published in July 2006, the European Commission seeks to create a set of harmonised choice of law rules in matrimonial matters. This proposal has given rise to diverse, often critical, reactions. This article does not provide a commentary of the proposed provisions. Instead, after a short presentation of the orientations and assumed objectives, it evaluates whether, as has been suggested, the proposal goes too far. Expressing in limine some reservations in relation to the existence and exercise of power by the Commission in this area, the author shows that while hostility against the harmonisation of choice of law rules in matrimonial matters is not justified in principle, the proposal is substantially flawed. Given the failure to address core substantive issues and the refusal to review the jurisdictional framework in which the proposed rules will operate, the article concludes that the proposed European codification of the law applicable to matrimonial causes will prove unable to solve many of the problems the initiative is supposed to correct (notably in terms of legal certainty and predictability for the parties and rush to court).