The role of party autonomy in cross-border divorces

The Regulation (EU) No. 1259/2010 of 20 December 2010 allows spouses to choose the law applicable to divorce. Even though this choice is limited to the laws clearly defined through objective criteria, it represents a relevant change for a field which is traditionally regulated by provisions that the parties cannot derogate. First of all this article analyses the reasons that really justify optio juris in case of international divorce. The choice of the applicable law is indeed the best way to preserve the spouses’ interests. This is particularly important in the European Union context, whose new regulations on family matters are essentially aimed at eliminating all obstacles to the freedom of movement of persons. The above mentioned provision induces to choose the law that allows a more rapid and inexpensive divorce (strengthening the favour divortii trend); but it also points out other needs. In the European countries, which are subjected to a massive migration phenomenon, there is an increasing demand of protection of the individual cultural identity, in case of conflict of laws as well. This demand is particularly noticed by people with traditions, religion and customs that are deeply different from those of their country of residence. This demand could be satisfied by the choice of the national law (the Regulation allows the choice of the law of the State of nationality of either spouse at the time of the agreement) that assures better the protection of that identity. Moreover, allowing the parties to choose the law governing their relationship appears to be a mean of overcoming the uncertainties arising from the combined application of the most recent legislation of the European Union on family matters. Currently, this legislation is divided into regulations that discipline relations of a different nature that are interconnected in a fragmentary manner (divorce proceedings, maintenance obligations and matrimonial property regimes), for which unitary treatment would be opportune. This article furthermore examines the optio juris functioning and, in particular, it focuses on the ways of assuring the full awareness of the parties as concerns the implications of their choice. Moreover this article highlights the limitations to the parties’ possibility of choice, such as public policy, mandatory provisions and the effect of the differences among national laws, in particular in case of matters involving same-sex couples. Besides in international divorces the parties’ will has its own role in the conclusion of the agreements that spouses stipulate before the marriage in order to regulate their future economic relationship in case of divorce (prenuptial agreements). In spite of the growing trend towards the recognition of the prenuptial agreements in recent years, their status is still uncertain.