Posted on July 22, 2022
The third question is raised only in the event that the Court finds, in answer to the second question, that the second approach envisaged in that question is the correct one, which is to say that the derogatory operation of the law of the forum pursuant to Article 10 of Regulation No presupposes that the application of the foreign law designated in principle is discriminatory, in relation to one of the spouses, in the instant case. Since I am proposing the opposite answer to the second question, there will in my view be no need for the Court to rule on the third question.
By its final question, the referring court asks the Court to determine whether the fact that the spouse discriminated against consented to the divorce, including by accepting compensation payments, allows the rule laid down in Article 10 of Regulation No not to be applied in this case
That court states that, in a case where the spouse alleged to have been adversely affected has given her duly registered consent, ( 102 ) it would be inclined not to apply that rule, with the result that the law designated by Article 5 or Article 8 of that regulation would remain applicable. It goes on to say, citing the case-law of the German courts to that effect, that, if Syrian law were applicable, it would have to be assessed, in the particular case, in the light of German public policy.
The German Government endorses that analysis, since it considers that there may in individual cases be no discrimination within the meaning of Article 10 where the spouse who is discriminated against in the abstract by the law applicable under the other provisions of Regulation No has declared his or her consent to the divorce, provided that that consent was given freely and in such a way as can be established beyond doubt, which it would be for the referring court to verify in the light of the circumstances of the instant case. ( 103 ) Mr Mamisch expressed a similar view at the hearing. ( 104 )
Moreover, it follows from the wording of Article 10, as well as from recital 24 of Regulation No , that the discriminatory factor justifying the derogatory application of the law of the forum is a lack of ‘equal access to divorce or legal separation’
The French, Hungarian and Portuguese Governments and the Commission, on the other hand, take the opposite view, as do I, for the following reasons.
In the first place , I would submit, like the Commission, that the wording of Article 10 of Regulation No does not contain any reservation that would allow the courts of the participating Member States to disregard the exception set out in that provision in cases where the application of the foreign law applicable in principle, which is by definition intrinsically discriminatory, is not in practice prejudicial to the spouse discriminated against.
( 105 ) The French Government rightly highlights the fact that it is important not to confuse a spouse’s acceptance of the consequences of a divorce procedure, on the one hand, and that same spouse’s acceptance of the principle of divorce, on the other hand. ( 106 ) In my view, the latter situation alone is described by the expression used in the abovementioned provisions. That analysis seems to me to be borne out by the fact that that regulation is intended to cover only the dissolution of marriage itself, expressly excluding from its scope as it does legal situations which arise not at the start but in the course or even at the end of a divorce procedure, such as the property consequences of marriage or maintenance obligations. ( 107 )