The Law Applicable to Divorce and Legal Separation Under Regulation (EU) No. 1259/2010 of 20 December 2010

I. The path to Regulation No. 1259/2010, from the Green Paper to enhanced cooperation. – II. Setting the context: the diversity of substantive and conflict-of-laws rules regarding divorce and legal separation in Europe. – III. Some general features of the conflict-of-laws rules laid down by the Regulation: (1) The Regulation is a piece of uniform law; (2) The Regulation only addresses conflict-of-laws issues; (3) The Regulation is only concerned with the dissolution or loosening of matrimonial ties; (4) The Regulation is based on bilateral conflict-of-laws rules; (5) The Regulation aims at striking a fair balance between the goal of social integration and the idea that cultural identity of the individual should be preserved; (6) The Regulation aims at making divorce and legal separation easier to obtain for both spouses on an equal footing; (7) The Regulation’s has a “universal” character and excludes the relevance of the conflict-of-laws rules of the designated law. – IV. The scope of application of the Regulation: (1) The notions of “divorce” and “legal separation”; (2) The transnational character of the situation; (3) Matters excluded from the scope of application of the Regulation; (4) The temporal scope of application of the Regulation; (5) The irrelevance of nationality and habitual residence of the spouses. – V. The relationship between the Regulation and existing international conventions. – VI. The agreement of the spouses as to the law applicable to divorce or legal separation: (1) The reasons explaining the favour of the Regulation towards autonomy; (2) The “conflictual”, as opposed to substantive, nature of the autonomy of the spouses; (3) The possible content of the agreement; (4) The moment at which the agreement may be concluded; (5) Issues regarding consent and the material validity of the agreement; (6) The formal requirements of the agreement. – VII. The law governing divorce and legal separation absent a choice of the spouses. – VIII. Conflict-of-laws issues relating to the conversion of legal separation into divorce. – IX. The designation of a law consisting of two or more legal systems. – X. Limitations affecting the functioning of the rules of the Regulation due to substantive reasons: (1) The application of the lex fori for reasons relating to the substantive content of the designated law; (2) The public policy exception; (C) The possibility of disregarding the law designated by the Regulation whenever such law is at odds with the views of the lex fori as to the validity of the marriage in question. – XI. The scope of the lex divortii. – XII. Concluding remarks.