Ireland has opted out of a new EU family law scheme, approved by
European justice ministers, under which a group 
of member states can
recognise each other’s divorce laws.
The new arrangement will allow couples where the spouses are from
different countries to choose the legal system under which they wish to
divorce or separate, the Irish Times reports.
It is the first time that the “enhanced cooperation” procedure, recognised in the Nice Treaty, has been used.
Under the procedure, a core group of no less than nine European countries can act together in a common EU initiative without all member states taking part.
Minister for Justice Dermot Ahern said that Irish participation in the scheme would mean that courts here would have to recognise and implement foreign divorce law. This was not desirable, he said.
Speaking after EU ministers met in Luxembourg on Friday, he said: “The fact that we had a referendum and had legislation strictly based on the referendum that the people voted on, I don’t think we can change that unless we have another referendum, obviously.”
There were more than one million divorces in the 27 EU countries in 2007, 140,000 of which had an international dimension.
The proposal allows both spouses to know in advance which law is applicable to their divorce, increasing flexibility by giving them the possibility of choosing which legal code should apply.
Both spouses will be required to express in writing which legal code should be applied in their divorce.
It is thought that this will make it harder for one spouse to pursue a divorce in a jurisdiction more likely to make an advantageous ruling, a practice known as “forum shopping”.
Currently, under Brussels II bis, where spouses come from different states, EU law only recognises divorces granted by the court from the jurisdiction in which proceedings have been issued first. This process can lead to race in which both spouses seek to register proceedings in the Member State which they believe has the most favourable divorce law for them.
The countries taking part in the enhanced co-operation procedure are Spain, Italy, Hungary, Luxembourg, Austria, Romania, Slovenia, Bulgaria, France, Germany, Belgium, Latvia, Malta and Portugal.