Experts warn against EU proposals for divorce laws

Fears that plan could compel application of foreign laws in divorce courts

News, 2 October 2006

New EU proposals could see Scottish courts forced to abide by the laws of other countries when dealing with divorce cases brought by foreign nationals.

Under the EU Commission's "Rome III" proposals, currently in green paper form, Scottish courts could be obliged to apply the laws of other countries in cases brought by foreign nationals.

Some countries even within the EU, such as Ireland, have much more restrictive divorce laws than Scotland. The EU proposals however are not restricted to EU nationals and could equally apply to the laws for example of Muslim countries.

The Justice 1 Committee of the Scottish Parliament, which has heard evidence on the paper, has written to the Scottish Executive and the House of Lords asking that Scotland and the rest of the UK opt out of the legislation. Legal experts have called the proposals unwise.

Pauline McNeill, convener of the committee, said it was imperative that the UK opted out of the proposals as it could lead to people shopping around for the legislation that suited them best.

Elizabeth Crawford, a professor of international private law at Glasgow University, who gave evidence to the committee, called the proposals disproportionate and an invasion of the discretion that Scottish courts should have.

There are also fears that Scottish courts are not equipped to apply foreign law, which normally has to be proved in evidence. As a result it would be likely to lead to additional cost and delay.