The Conference of the Notariats of the European Union is in favour of letting couples choose the competent authority and applicable law when resolving their marriage crises. Also, in order to prevent forum shopping, a Community regulation harmonising procedure for determining the applicable law and competent authorities would be welcomed for cases where there is no agreement between the couple.
The CNUE agrees with the Commission when it comes to giving couples the choice of applicable law to resolve their marriage crises. As stated by the CNUE’s President, Paolo Piccoli, “the couples themselves are the best placed to specify the law with which they are most familiar and which should logically govern their divorce proceedings”. The choice, which would require agreement from both parties, could be made either when the divorce is requested or at any time during their marriage, or even before the marriage. This would allow, for instance, the choice of applicable law in case of future divorce proceedings to be fixed in the marriage contract itself.
In order to retain a degree of coherence in family law, however, this choice must be limited to a law that has a real link with the couple, through either their nationality or their habitual residence.
The CNUE hopes that a European regulation will determine the applicable law in divorce matters in order to put an end to forum shopping. Consequently, an Italian-German couple living in Brussels would not feel the need to go to an Italian or German court, respectively, to file for divorce if they knew that the result of the divorce proceedings would be exactly the same as if they went to a Brussels court.
The CNUE would also like to let couples choose the competent authorities through which they can file for divorce.