Collaborative Divorce: is it valid across borders?
- Published on January 18, 2017
Member at Gruppo di Pratica Collaborativa Ron Ousky
As you may know, Italy, France (and perhaps other Countries) have introduced several forms of Out of Court Divorce.
Italy, in particular, is the Country where you can either divorce no fault/no childrensince 2014 before the General Registrar of your Townhall, or (no fault but with children) with the help of two Family Law Lawyers through Collaborative Law (a.k.a. Negoziazione Assistita). Both of these types of divorces do not need a Court’s Order
To my knowledge the situation is not much different in France, where neither party needs to be held responsible for the failure of the marriage and they can now divorce “avec un acte sous signature privée contresigné par avocats”: therefore in both of our Latin Countries if both spouses consent to the divorce and reach an agreement on all relevant issues no further reasons need be given, no appeal needs to be lodged.
In Common Law Countries the situation may differ a little bit because of the necessity of showing the grounds for divorce (adultery being one of the most frequent).
This having been said, the introduction of a “Divorzio Senza Giudice” Out-of-Court Divorce, or Divorce-Sans-Juge is big news for Italy and France, and for all Collaborative Lawyers in general.
But a question comes up to my mind: can you register such a type of divorce abroad?
The Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000
Art. 2 .For the Purposes of this Regulation….4. the term “judgment” shall mean a divorce, legal separation or marriage annulment, as well as a judgmentrelating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision
Needless to say, an administrative order or a settlement reached through the lawyers, cannot be called a judgement.
Does this mean that a Collaborative Divorce and a Divorce Sans Juge cannot be registered abroad as not having been pronounced by a Court of a Member State?
(I suspect that the same issue could be raised also by a Judge of a non-member State where an out of court divorce is invoked).
The answer is: I don’t know, but there are strong reasons to consider that these kind of settlements aren’t valid abroad, which is a huge boulder on the path of ADR and Collaborative Divorce in Europe. A modification of the European Regulation must be therefore sought immediately.
Marco Calabrese, English Speaking Attorney in Rome, shortlisted by the US Embassy, is the owner of the Family Law Italy, a small law practice dealing with all family issues. Contacts: firstname.lastname@example.org; www.familylawitaly.com. On an International level Marco is a member of Resolution-First for Family Law www.resolution.org.uk and IACP www.collaborativepractice.com.