The Rome III regulation and its impact on Maltese private international law rules on the applicable law in the sphere of divorce and legal seperation

Abstract

This thesis performs a study of the effects of the conflict-of-law rules in the area of the law applicable to divorce and legal separation, as introduced by Council Regulation (EU) No 1259/2010 of 20 December 2010 (Rome III) as a result of enhanced cooperation, which, at present, comprises fifteen participating Member States. The scope of these rules is to designate which law is to apply to the loosening or dissolution of 'international' matrimonial ties, whether this is agreed upon by the spouses themselves according to the connecting factors provided, or through a hierarchical list of connecting factors which take effect if a choice is not made. After considering the functionality of these rules, as supplemented by other provisions which, mainly, address the issue of differences in national substantive laws, focus shifts onto the scene in Malta, comparing the period when divorce was not yet legal to the current status quo. Particular attention is centred on the dealings which Malta had during the course which led to enhanced cooperation and on the effect which the system of proof of foreign law adopted in the courts may have on the application of the law designated according to the Regulation. This thesis then moves on to compare the connecting factors adopted for the purposes of the Regulation with the connecting factors employed by other EU legal instruments regulating issues concerning matrimonial matters. The limits within which the law applicable to divorce or legal separation can apply is also discussed in relation to the law applicable to other ancillary issues. This is followed by an evaluation of the differences existing between the participating and the non-participating Member States as a consequence of this enhanced cooperation.