The prospect of liberal divorce laws being applied here will raise concerns, writes Jamie Smyth
The European Commission's proposal to harmonise the rules on how divorce laws apply in the EU will prove controversial.
Several EU states jealously guard their right to systematically apply their own domestic law in divorce proceedings, particularly Ireland, Britain and Malta (where divorce is not available).
The prospect of Irish judges applying liberal Swedish divorce laws in an Irish courtroom will raise objections in many quarters, while Malta has already informed the commission that it cannot accept this situation.
But the commission argues that the current complex situation where international couples often don't know which laws will apply when they seek a divorce in different member states is unacceptable.
Last February, the commission set out its preliminary ideas in a Green Paper. It has now drawn up a formal proposal, which has been seen by The Irish Times.
It says its objective is to provide legal certainty, predictability, flexibility and access to the court for European citizens. It emphasises that it is not seeking to harmonise divorce laws across the union, but rather the rules governing which law applies in certain circumstances.
The primary reason offered by the commission for legislating in the sensitive area of divorce is the increasing numbers of international couples getting divorced in the EU.
Estimates based on statistics supplied by a sample of 13 member states (Ireland did not provide figures) show that on average there are 170,000 international divorces in the EU every year. This amounts to about 16 per cent of all EU divorces registered.
Increased mobility of workers across Europe also means that many couples now live abroad in other EU states.
A study by the commission shows an estimated 2.5 million properties in the EU are owned by spouses who live in another EU state, which is why it will on Monday also launch a public consultation on conflict-of-law rules, jurisdiction and recognition in matters of matrimonial property regimes.
The main thrust of the proposal would see couples gain the ability to choose the divorce law that they want to apply in their particular circumstances.
However, the choice is limited to the laws with which the marriage has a close connection, to avoid a situation where couples choose "exotic" laws to speed up a divorce.
The applicable law for couples will be determined on the basis of a scale of factors, such as the nationality of each spouse and country of habitual residence.
This opens the possibility that international couples could seek to apply foreign divorce law in an Irish court, a prospect the Government opposes on the basis of the Irish Constitution.
Until now the current jurisdictional rules do not allow spouses to apply for divorce in a member state of which only one of them is a national and in the absence of another connecting factor.
So the proposal would improve access to court for spouses of different nationalities by enabling them, by common agreement, to choose a court.
To address the concerns of Ireland and Malta, the commission has included a "public policy" exception that can be invoked by courts under exceptional circumstances, particularly when the application of foreign law in a given case would be contrary to the policy of the court.
If this does not assuage the Government, there is also the prospect that the Government could seek to opt out of this particular regulation.
The EU legal services are studying whether it is possible for Ireland and Britain to use their existing power to opt out of certain judicial matters for this proposal.
The situation is complicated because Ireland has already opted into a previous regulation dealing with divorce, called Brussels II in 2000. There is some doubt about whether it is legal for an EU state to opt out of a regulation that modifies an existing legal instrument that it has already agreed to and signed up to implement.
The Government retains the option of blocking the proposal for the entire EU. The proposal requires a unanimous Yes vote by all 25 member states to become law, although this could change depending on what happens with any renegotiation of the EU constitution.
The legislative process now switches to EU member states, which will debate the issue at a justice council later this year. Supporters of the proposal, including EU heavyweights Germany, France and Italy, will hope Ireland can live with the measure.