20 Amendments of Ska KELLER related to 2010/0067(CNS)
Amendment 9 #
Proposal for a regulation
Recital 9
Recital 9
(9) This Regulation should create a clear, comprehensive legal framework in the area of the law applicable to divorce and legal separation in the participating Member States, provide citizens with appropriate outcomes in terms of legal certainty, predictability and flexibility, and prevent a situation from arising where one of the spouses or registered partners applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests.
Amendment 10 #
Proposal for a regulation
Recital 12
Recital 12
(12) In order to allow the spouses or registered partners to choose an applicable law with which they have a close connection or, in the absence of such choice, in order that that law might apply to their divorce or legal separation or dissolution of their registered partnership, the law in question should apply even if it is not that of a participating Member State. Where the law of another Member State is designated, the network created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters can play a part in assisting the courts with regard to the content of foreign law.
Amendment 11 #
Proposal for a regulation
Recital 13
Recital 13
(13) Increasing the mobility of citizens calls for more flexibility and greater legal certainty. In order to achieve that objective, this Regulation should enhance the parties' autonomy in the areas of divorce and legal separation by giving them a limited possibility to choose the law applicable to their divorce or legal separation. Such possibility should notalso extend to marriage annulment, which is closely linked to the conditions for the validity of marriage, and for which autonomy on the part of the parties is inappropriate and registered/civil partnerships, so as to avoid discriminating against the various forms in which the right to respect for private and family life is exercised.
Amendment 14 #
Proposal for a regulation
Recital 14
Recital 14
(14) Spouses or registered partners should be able to choose the law of a country with which they have a special connection or the lex fori as the law applicable to divorce and legal separation or to the dissolution of a registered partnership. The law chosen by the spouses or registered partners must be consonant with the fundamental rights enshrined in the Treaties and the Charter of Fundamental Rights of the European Union. The possibility of choosing the law applicable to divorce and legal separation or to the dissolution of a registered partnership should not harm the superior interests of the child.
Amendment 18 #
Proposal for a regulation
Recital 15
Recital 15
(15) Before designating the applicable law, it is important for spouses or registered partners to have access to up-to-date information concerning the essential aspects of national and Union law and of the procedures governing divorce and, legal separation and the dissolution of registered partnerships. To guarantee such access to appropriate, good-quality information, the Commission regularly updates it in the Internet-based public information system set up by Council Decision 2001/470/EC.
Amendment 19 #
Proposal for a regulation
Recital 16
Recital 16
(16) The informed choice of the two spouses or registered partners is a basic principle of this Regulation. Each spouse/registered partner should know exactly what are the legal and social implications of the choice of applicable law. The possibility of choosing the applicable law by common agreement should be without prejudice to the rights of, and equal opportunities for, the two spouses or registered partners. Hence judges in the Member States should be aware of the importance of an informed choice on the part of the two spouses/registered partners concerning the legal implications of the choice-of-law agreement concluded.
Amendment 20 #
Proposal for a regulation
Recital 17
Recital 17
(17) Certain safeguards should be introduced to ensure that spouses or registered partners are aware of the implications of their choice. The agreement on the choice of applicable law should at least be expressed in writing, dated and signed by both parties. However, if the law of the participating Member State in which the two spouses/registered partners have their habitual residence lays down additional formal rules, those rules must be complied with. For example, such additional formal rules may exist in a participating Member State where the agreement is inserted in a marriage contract.
Amendment 22 #
Proposal for a regulation
Recital 19
Recital 19
(19) Where no applicable law is chosen, and with a view to guaranteeing legal certainty and predictability and preventing a situation from arising in which one of the spouses applies for divorceor registered partners applies for divorce or legal separation or dissolution of their partnership before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests, this Regulation should introduce harmonised conflict-of- laws rules on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses/registered partners and the law concerned. These connecting factors have been chosen so 1 that the divorce or legal separation proceedingproceeding for divorce, legal separation or dissolution of the registered partnership, is governed by a law with which the spouses/registered partners have a close connection, and they are based first and foremost on the law of the spouses'/registered partners' habitual residence.
Amendment 23 #
Proposal for a regulation
Recital 20
Recital 20
(20) In certain situations, such as where the applicable law makes no provision for divorce or legal separation or dissolution of registered partnerships, or where it does not grant one of the spouses equal access to divorce or legal separation on grounds of their sexprohibited by Article 21 of the Charter of Fundamental Rights of the European Union, the law of the court seised should nevertheless apply.
Amendment 24 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation shall apply, in situations involving a conflict of laws, to divorce and, legal separation, annulment of marriage and dissolution of civil/registered partnerships.
Amendment 27 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory wording
Article 3 – paragraph 1 – introductory wording
1. The spouses or registered partners may choose by mutual agreement the law applicable to divorce and legal separation or to dissolution of registered partnerships, provided that such law is in conformity with the fundamental rights defined in the Treaties and in the Charter of Fundamental Rights of the European Union and with the principle of public policy, from among the following laws:
Amendment 30 #
Proposal for a regulation
Article 3 – paragraph 1 – point d a (new)
Article 3 – paragraph 1 – point d a (new)
(da) the law of the State where the marriage or civil partnership took place.
Amendment 32 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 2
Article 3 – paragraph 3 – subparagraph 2
However, if the law of the participating Member State in which the two spouses/registered partners have their habitual residence at the time of conclusion of the agreement lays down additional formal requirements for this type of agreement, those requirements shall apply. If the spouses/registered partners are habitually resident in different participating Member States and the laws of those Member States provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws.
Amendment 34 #
Proposal for a regulation
Article 3 – paragraph 4
Article 3 – paragraph 4
4. If the lex fori so provides, the spouses/registered partners may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the lex fori.
Amendment 35 #
Proposal for a regulation
Article 4 – introductory wording
Article 4 – introductory wording
In the absence of a choice pursuant to Article 3, divorce and, legal separation, annulment of marriage and dissolution of a registered partnership shall be subject to the law of the State:
Amendment 36 #
Proposal for a regulation
Article 4 – point a
Article 4 – point a
(a) where the spouses/registered partners are habitually resident at the time the court is seised; or, failing that,
Amendment 37 #
Proposal for a regulation
Article 4 – point b
Article 4 – point b
(b) where the spouses/registered partners were last habitually resident, provided that the period of residence did not end more than one year before the court was seised, in so far as one of the spouses or partners still resides in that State at the time the court is seised; or, failing that,
Amendment 39 #
Proposal for a regulation
Article 4 – point c
Article 4 – point c
(c) of which both spouses/registered partners are nationals at the time the court is seised; or, failing that,
Amendment 40 #
Proposal for a regulation
Article 4 – point d a (new)
Article 4 – point d a (new)
(da) where the marriage or civil partnership took place.
Amendment 41 #
Proposal for a regulation
Article 5
Article 5
Where the law applicable pursuant to Article 3 or Article 4 makes no provision for divorce or legal separation or dissolution of registered partnerships, or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sexprohibited by Article 21 of the Charter of Fundamental Rights of the European Union, the lex fori shall apply.