It should not be trivialized

Rules to bring “legal certainty” to international couples “wishing to divorce”. These “directions” guide the new European legislation that will give a choice as to which country’s rules apply in case of divorce for couples with different nationalities, to those living apart in different countries or those living together in a country other than their home country. The EU Commission thus intends to reduce “forum shopping”, and to protect weaker partners during divorce disputes. The new rules endorsed on December 3rd by 14 EU Countries (Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia), are based on the so-called “enhanced cooperation”. “The end of a marriage is a tough enough experience for any family, but international couples can face added complications because of a lack of clarity in national rules,” said Vice-President Viviane Reding, the EU’s Justice Commissioner. The Commission made its proposal in March, the European Parliament approved the enhanced cooperation procedure in June 2010. EU governments adopted the Council Decision authorising enhanced cooperation on 12 July 2010. Today’s endorsement by EU Justice Ministers concerns the Commission proposal for a Regulation that includes the detailed rules that will apply to international divorces. “Under the Commission proposal, couples will be able to agree during the marriage which law would apply to their divorce”, states the Commission in a note. This “would give them more legal certainty, predictability and flexibility and would help to protect spouses and their children from complicated, drawn-out and painful procedures”. The European Parliament will give its opinion on the legislation before it can enter into force. It will enter into force 18 months after adoption.A delicate question. “It’s a rather delicate issue – said Pietro Boffi, responsible of the CISF (international family studies centre) Documentation department. “It must be stressed that the end of a marriage is always a very painful experience. It’s not just a matter of legal proceedings. It must be honestly acknowledged that these experiences affect the individual as a whole, involving his private and economic sphere and impacting also parent-children relations”. “Tragic developments often ensue – Boffi continues – that risk jeopardizing individual and societal stability. In this context, harmful consequences can be prevented by adopting appropriate measures, so as not to make things worse”. “It’s like when mediation strategies are proposed to avoid conflicts between divorcing couples for the good of their children. Moreover, the mediation must not be understood as a way to facilitate divorce. Rather, it is a means to prevent devastating life-long consequences on all those involved. Once it is clear that we are experiencing a dramatic situation, whatever can make it less complex and difficult and more endurable is welcome”. In fact, “when conflicts become international, also with the notorious “theft” of children, these peregrinations across Europe and throughout the world by parents who haven’t seen their children for years ruin entire lives. Thus, stepping up legal certainty and providing a possible way out is in itself positive”. It can thus be accepted provided that people in difficulty are not further penalized. They should not be tortured with consuming and expensive judicial proceedings, which mostly damage those with the lowest financial and intellectual resources. For Boffi, “trivializing divorce would be the wrong thing to do”. If the objective of the legislative proposal is establishing which law should be applied in case of divorce, Boffi points out, “the problem could be that the couple might be fully cognizant of the divorce legislation of the chosen country. However, if a person makes such a step, he is at least warned that he will have to be addressing that kind of procedure”.