First topic of discussion:
GROUNDS OF JURISDICTION/APPLICABLE LAW IN MATRIMONIAL MATTERS
Example 1: The indian couple applying in Italy for divorce by mutual consent pursuant to the
Hindu Marriage Act of 18 5 1955
(Belluno Tribunal, 6 March 2009)
An Indian couple got married in India in 1998 (the marriage was entered in the register of
marriages of Hindus Jalandhar on 23.6.1998) and in 2001 moved to Belluno (Italy) where they
both resided until 2008.
In 2008 the couple decided to divorce and proposed a joint application for divorce before the
Tribunal of Belluno.
According to art. 31 of the Italian law No 218/1995 of private international law (“The separation
and the dissolution of marriage are firstly regulated by national law of the spouses at the time of
application for separation or dissolution of marriage or failing that, the law of the State where the
marriage appears predominantly localized”) the applicable law is art. 13-B, paragraph 1 ( "divorce
by mutual consent") of the Hindu Marriage Act.
Example 2: the Italian couple living in Germany seeking divorce under German law
(Green Paper of the Commission on jurisdiction and applicable law in matrimonial matters)
A couple of Italian nationality lived in Munich (Germany) for twenty years and felt perfectly
integrated in German society. When their children left home, the couple decided to divorce by
consent.
They would like to divorce under German law, with which they felt the most closely connected,
and which requires only one year of separation in cases of divorce by consent, compared to three
years of separation required under Italian law.
The Brussels II bis Regulation allows the spouses to apply for divorce in either Germany or Italy.
Nevertheless, since German as well as Italian conflict-of-law rules are based, firstly, on the
common nationality of the spouses, the courts of both countries would apply Italian divorce law.
Example 3: the Finnish/Swedish couple living in Ireland who would like to divorce under
Finnish/Swedish law
(Green Paper of the Commission on jurisdiction and applicable law in matrimonial matters)
A Finnish/Swedish couple moved from Stockholm to Dublin where they were offered interesting
jobs.
Their marriage deteriorated and they finally decided to divorce. The couple would expectthe
divorce proceedings to be rather simple and swift, as it would be under Finnish or Swedish law,
since they both wanted to divorce and do not have any children.
However, only Irish courts have jurisdiction according to the new Brussels II Regulation and Irish
courts apply Irish law (“lex fori”) to divorce proceedings, irrespective of the nationality of the
spouses.
The only way to ensure the application of Swedish or Finnish divorce law would be if a spouse
returned to his or her Member State of origin for at least six months and then applied for divorce in
that country.
Neither spouse was willing or able to quit his or her job and leave Ireland for six months for this
purpose.
On the other hand, they wanted to avoid the application of Irish divorce law, which requires a four
years’ separation period to establish that the marriage has broken down.
Obviously they are surprised that the conditions for divorce have changed so dramatically, due to
their decision to move to another Member State.
Example 4: the German/Dutch couple living in a third State
(Green Paper of the Commission on jurisdiction and applicable law in matrimonial matters)
A German/Dutch couple was living in a third State since many years. Their relationship
deteriorated and the German wife would like to divorce, preferably before a German court.
However, she could not apply for divorce in Germany or in any other Member State.
None of the grounds of jurisdiction of the new Brussels II Regulation is applicable since the couple
is not habitually resident in a Member State and the spouses are not of common nationality. In such
circumstances, the courts of the Member States may avail themselves of their national rules of
jurisdiction.
However, the German wife cannot apply for divorce in Germany under the German rules
ofjurisdiction, since the Dutch husband can only be sued in Germany according to the jurisdiction
rules of the Regulation according to Article 6, which offers a certain protection to respondents. Nor
can she apply for divorce in the Netherlands, since Dutch law does not provide for internal
jurisdiction rules in these circumstances. Consequently, the German wife is unable to apply for
divorce in any Member State. Her only hope is that the courts of the third State will have
jurisdiction to deal with the matter. Even if that would be the case, it may be difficult to have a
divorce pronounced in the third State recognised in Germany
1) Examples 1,2,3: Which would be the applicable law on the basis of the Proposed Regulation
Rome III?
2) Just Example 3:
 Which grounds of jurisdiction do I have to apply: art. 3 of Brussels II bis
 Is divorce by mutual consent contrary to art. 16.1 of the Italian law No 218/1995 of private
international law ( "public policy"), pursuant to which «Foreign law is not applied if its
effects are contrary to public policy»?
 How a Latvian court would resolve the issue?
3) Example 4: How rules would change under the Proposed Regulation Rome III
Note that art. 32 Italian law No 218/1995 states that in matters of nullity and annulment of
marriage, separation, or dissolution of marriage, the Italian jurisdiction exists in addition to the
cases provided for in art. 3, also when one spouse is an Italian citizen and when the marriage was
celebrated in Italy.
Second topic of discussion:
COORDINATION OF JURISDICTION RULES/RECOGNITION AND ENFORCEMENT
OF JUDGMENTS IN MATRIMONIAL MATTERS
Recognition in Italy of a judgment of divorce given in Germany
(Bari Tribunal, 6 April 2009)
An Italian man and a German woman got married in Germany on 23 December1996 and in 1999
moved to Italy, where, in 2002, decided to dissolve the marriage bond.
On 11 April 2002 the husband sued the wife for legal separation before the Bari Tribunal (Italty).
Meanwhile, on 4 February 2005, the Dinslaken Court (Germany), upon request of the wife, gave
the decision of divorce in accordance with German rules and without any obligation of a benefit,
however not covered under German Law.
Shortly after, on 25 February 2005, the Bari Tribunal (Italy) gave the decision of legal separation
in default of appearence of the wife, to whom separation is charged.
On 16.6.2006 the husband sued for divorce the wife before the Bari Tribunal pursuant to article
Article. No 3 2) lett. e) of the Italian Law on divorce (L. No 898/1970), which provides for this
possibility « in case "the other spouse, foreign citizen, obtained abroad annulment or dissolution
of marriage or new marriage contract abroad»
Will the Italian court choose to continue the proceedings for divorce pending before it?
Rules on lis pendens could have been applied in order to avoid this situation?