로마Ⅲ규칙에 있어서 이혼 및 법적 별거의 준거법

The Applicable Law to Divorce and Legal Separation in the RomeⅢ Regulation

Council Regulation(EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation(“RomeⅢ”) has taken effect on June 21, 2012. Therefore, the RomeⅢ Regulation provides the uniform rules adopted by the EU to determine the law applicable to divorce and legal separation. The RomeⅢ Regulation is an instrument implementing ‘enhanced cooperation’ between the participating Member States. Now, it is a regulation concerning the applicable law regarding divorce valid in 17 countries. Specifically, the RomeⅢ Regulation enhances the parties autonomy by giving the spouses a limited possibility to choose the applicable law to their divorce or legal separation: the law of the State where the spouses are habitually resident at the time the agreement is concluded; the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; the law of the State of nationality of either spouse at the time the agreement is concluded; or the law of the forum. In the absence of a choice by the parties the Regulation contains a scale of successive connecting factors to determine the applicable law, based on the habitual residence, the nationality and the lex fori: Divorce and legal separation are governed by the law of the State a) where the spouses are habitually resident at the time the court is seized; or, failing that b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that c) of which both spouses are nationals at the time the court is seized; or, failing that d) where the court is seized. This article analyzes the RomeⅢ Regulation, the uniform rules adopted by the EU to determine the law applicable to cross-border divorce and legal separation.