The importance of international family law
It is crucial to know the importance of the international aspects of family law first. Almost all aspects of family law have some kind of international relevance: the conclusion and termination of the marriage (divorce), moving to a different country, raising the child in multiple states or adopting children from abroad all bear international importance. Such cases become even more complex when the spouses themselves are of different nationalities. More international marriages mean more international divorces, which may result in a lot of legal and technical difficulties.
International marriage
Marrying a spouse with a different nationality is an old and tried legal process, ever since the beginning of the 20th century. There are a number of international agreements which aim to settle the question of the applicable law for international marriages and family law cases. One of the most important documents is the so-called Brussels IIA regulation, which regulates the applicable law for marriage and parental guidance. The agreement regulating the applicable law for international divorces is the so-called Rome III regulation. It is important to note however that this document only covers the applicable law relevant for the given divorce proceedings, and does not include rules for other questions (like the validity of the marriage etc.)
Where can I file the divorce?
As a general rule, the law of the country of the spouses’ autonomy is to be applied for the divorce proceedings. According to this rule, the spouses who wish to divoce may choose either of the below options:
1. the law of the country where the common domicile of the spouses is located;
2. the law of the country where the spouses’ last common domicile was located, provided that at least one of the spouses still lives in that country;
3. the law of either of the spouses’ home country (nationality); or
4. in case none of the above is applicable, the spouses may choose the law of the court to which they filed the divorce papers (lex fori).
In order for the spouses to be able to choose the optimal law, the European Union has created an online, freely accessible informational network, with which the spouses may compare jurisdictions.
What happens if no jurisdiction is chosen?
In order to prevent one of the spouses from choosing the applicable law at their sole discretion, the regulation introduced rules that aim to provide the spouses with a neutral applicable law. Therefore, the applicable law for the divorce is to be decided as described below:
1. The law of the country where the spouses common domicile is located at the time of filing the divorce papers;
2. the law of the country where the spouses’ last common domicile was located in the last 1 year prior to filing the divorce papers, provided that at least one of the spouses still lives in that country;
3. the law of the spouses’ common nationality at the time of filing the divorce papers;
4. in case none of the above is applicable, the spouses may choose the law of the court to which they filed the divorce papers (lex fori).
Did you know?
A final divorce in either of the European Union’s member countries is recognized automatically by all other EU countries, with the only exception being Denmark. Denmark has opted out from the international divorce rules of the EU.
Refusal to apply the law chosen by the spouses
In the following cases the regulation allows for the refusal to apply the law chosen by the spouses: in case where application fo the law chosen by the spouses is obviously incompatible with the laws of the court’s country, or in the event that the court’s country does not consider the given marriage as valid (for example in cases where the court’s country does not recognize the marriage between same-sex couples).
How are international divorce procedures performed in Hungary?
According to Hungarian law, and especially act 28 of 2017 on international private law (the Codex), before proceeding with the divorce the Hungarian court must first investigate whether either of the above reasons for refusal may be applicable. Also, the court checks the spouses’ nationality, and if the spouses are of different nationalities, but at least one of the spouses is a Hungarian citizen, the court will automatically apply Hungarian law for the divorce procedure. As more and more Hungarian citizens are involved in international divorce procedures in Hungary, this rule is being used ever so often.
