Rechtswahlfreiheit im Internationalen Scheidungsrecht der Rom III-Verordnung

Freedom of Choice of Law in the International Law of Divorce under the Rome III Regulation The principle of private autonomy has reached European conflict of laws in divorce matters with Regulation (EU) No. 1259/2010 (Rome III). This is relevant due to the degree of cross-border family matters, the persistently high divorce rates and the considerable differences as to the substantive laws that continue to exist. This article addresses the motives behind the movement to party autonomy, but above all it considers a need for clarification that should not be underestimated.Due to the objective connecting factor, courts will apply the lex fori more frequently. In the absence of a choice of law, Art. 8 Rome III Regulation declares applicable the law of the common habitual residence or in certain circumstances that of the last common residence of the spouses. This is owing to the integration effect intended by the Regulation but is also due to the advantages of the lex fori approach, which approximates English law. However, it is doubtful whether the lex fori always meets the interests of the parties as the principle of habitual residence (resulting in a simultaneous departure from the quite strict citizenship principle) creates some uncertainty. These ambiguities can be overcome by the parties' primary right to choose the law under Art. 5 Rome III Regulation. In that way, the continuity needs of the parties can be accommodated.The principle of free choice of law contained in the Regulation is an important component of the international private law of the European Union even though Rome III applies only to participating Member States. In addition, surprisingly, many questions remain open. Some are answered as follows. The Regulation is relevant not only for judicial or administrative decisions, but also for private divorces. That the Regulation applies, in principle, to same-sex marriages also seems compelling, though the assessment of the question is left to national law (see Art. 13 Rome III Regulation). It is disputed whether under Art. 5(1)(d) Rome III Regulation the law of the forum can also be chosen abstractly. This is affirmed here so long as the spouses have informed themselves to a sufficient and specific degree and have narrowed down the electable states – and the state in question belongs to that group. The choice of law by people with multiple citizenship is not limited to the effective citizenship even if that is prescribed by national law. From the requirement of the Regulation that a choice of law shall not prejudice the rights and equality of the spouses, it is derived that national courts are under an obligation to review the content in the context of Art. 6 Rome III Regulation. The article also emphasizes the importance of Art. 10 Rome III Regulation, which is ideal for resolving gender discrimination issues such as those arising under Islamic law.