Two different types of divorces may be available in the Irish courts if proposals in the latest Green Paper from the European Commission become law, The Irish Times has learned.
The option of allowing people from different EU member states living in the same state to opt for which divorce law applies to them is one of those outlined in the Green Paper.
This would mean the courts would have to apply different laws to different applicants for divorce, and Irish applicants would be bound by Irish divorce law, while non-Irish applicants, or an Irish person married to a non-national, could seek to have a divorce under the divorce laws of another country.
Therefore the constitutional and legal requirement that a couple be living apart for four years, for example, and that "proper provision" be made for both spouses, essential under Irish divorce law, would not apply to all cases before the Irish courts.
The Green Paper has been put forward by the commission given the difficulties that have arisen with the implementation of an EU regulation called Brussels II. This follows some years' experience of the first Brussels II Regulation, which sought to reconcile different divorce regimes across the EU for migrating couples, or couples in inter-national marriages.
The regulation arises out of the Amsterdam Treaty, under which member states would seek the common implementation of agreements under civil law. There was no attempt at harmonisation of divorce law, and this still does not exist.
Instead, measures were introduced to allow couples who moved to another state, or people from different EU states who married each other, have a number of options when it came to divorce. These included having the option of seeking a divorce either in the country where the marriage had mainly existed, or in the country in which either of them was domiciled.
According to the Green Paper, the shortcomings of this system included the lack of certainty about which jurisdiction would apply, and a risk of one party "rushing to court" to ensure that the court most favourable to him or her heard the case.
The Green Paper put forward suggestions to overcome current difficulties. One suggestion made is that they should be able to choose the law under which their divorce will proceed, irrespective of the court where the divorce is heard.
An example was given of a Swedish-Finnish couple without children, living and working in Dublin, and intending to remain. The marriage breaks down, and they expect a simple and swift divorce, as they could have under Swedish or Finnish law, as they are agreeing to the divorce and do not have children.
However, they would find they have to live apart for a minimum of four years, and that "proper provision" would have to be made for each spouse by the court. To avail of Finnish or Swedish law, they would have to establish domicile for a minimum of six months in either state, which would mean leaving their jobs.
One proposal in the Green Paper is that they could choose the competent court, or choose the applicable law. If they were able to choose the applicable law, and Irish courts were asked to apply Swedish or Finnish law, it would mean that they would be issuing divorces under different sets of rules to people in different circumstances. While Irish divorce law would not be changed, not everyone in Ireland would be covered by it.
Another proposal is the harmonisation of the law governing the conflict between the laws of different states across the EU. At the moment each state deals differently with a situation where there is a conflict of law.
The Green Paper also advanced the possibility of revising the rules of jurisdiction that already exist under Brussels II. But it acknowledged that this could further exacerbate the lack of legal certainty.
The Green Paper is under discussion by experts in EU member states.