EUROPEAN CHOICE OF LAW RULES IN DIVORCE (ROME III): AN EXAMINATION OF THE POSSIBLE CONNECTING FACTORS IN DIVORCE MATTERS AGAINST THE BACKGROUND OF PRIVATE INTERNATIONAL LAW DEVELOPMENTS

Author: GAERTNER, VERONIKA

Source: Journal of Private International Law, Volume 2, Number 1, April 2006 , pp. 99-136(38)

Publisher: Hart Publishing

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Abstract:

The article examines the current connecting factors regarding divorce - nationality and lex fori - in view of the planned Rome III Regulation on applicable law and jurisdiction in divorce matters and asks whether the favoured connecting factor of habitual residence represents a desirable alternative. This analysis is imbedded in the discussion of three general challenges choice of law rules in Europe have to face today – the principle of mutual recognition, harmonisation, and the trend towards jurisdiction. By means of an examination of the different connecting factors – that reflect these developments - the significance of choice of law rules, especially in view of the protection of cultural identity, is shown. It is argued that choice of law rules in Europe fulfil still – despite the topical challenges – an important function in ensuring the application of the “appropriate law”, which is - with regard to divorce – the personal law. This demands the application of nationality and domicile as connecting factors in a prospective Rome III Regulation.
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