Case Study on the PIL„German divorce”

Case Description

• A German married couple domiciled in Poland• Husband has repeatedly cheated on his wife and then he left Poland• The wife still in Poland, she demanded the fault divorce before the

Polish court• Has she done well?

Jurisdiction

• Brussels II bis Regulation [Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338 , 23/12/2003 P. 0001 - 0029]• Article 3• Concurrent jurisdiction• Both the Polish and German courts are competent to issue a divorce

decree

Applicable law – Poland

• Domestic law provisions of Article 54 PILA• Ladder of connecting factors• common nationality of spouses, and in the absence thereof• their common domicile, and subsidiarily• last common habitual residence provided that any of the spouses is still

resident there, and finally• law of the forum (Polish law).

• German substantive law applies• No fault divorce decree can be obtained

Applicable law – Germany

• EU law instrument: ‘Rome III’ 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 [OJ L 343 , 29/12/2010 P. 0010 - 0016]• Law chosen by the parties in accordance with Article 5 of the Regulation, and in the

absence of any such choice, the law chosen from among the “ladder”• Common habitual residence (lex habitationis of both spouses)• Last common habitual residence provided that any spouse is still resident there• Common nationality• Law of the forum (lex fori)

• Polish law as the law of the last habitual residence of spouses applies• Fault divorce decree would be delivered at the applicant’s request

Conclusions

• Divergent rules of the PIL between Member States• Weakened predictability for the parties• Incentive to use the „legal engineering” (forum shopping)