A new proposal to harmonise divorce laws among a group of EU member-state has been criticised by a leading international pro-family organisation, the Alliance Defence Fund (ADF). The Maltese government has also expressed concern about the move. Currently, divorce is illegal in Malta.
The Alliance Defence Fund has described the move as “a new and questionable application” of "enhanced cooperation" which “arguably expands EU jurisdiction”.
Family law is not an area of competence of the EU, but cross-border harmonisation of law is. Critics says the power to harmonise laws across the EU should not be used to interfere in family law.
According to the European Commission, the proposal will allow couples who are divorcing, but come from different European countries, to conduct their divorce with "fewer legal complications".
However, during an informal meeting of Justice Ministers earlier this year to discuss the proposal, Maltese Justice Minister Carmelo Mifsud Bonnici expressed caution. "We don't think there should be a two-speed approach on such a sensitive issue once the 27 member states did not agree on the proposed directive.”
Belgium, Germany and Latvia are the latest countries to use the "enhanced cooperation" procedure that allows a group of countries within the 27-nation European Union to formulate their own policies without the need for a vote of the Council of Ministers and without the agreement of the other member-states.
They join Austria, Bulgaria, France, Hungary, Italy, Luxembourg, Romania, Slovakia and Spain in agreeing to draw up a shared law settling how courts deal with divorce cases that cross their borders.
Under enhanced cooperation, whatever arrangement the Member States involved agree upon will be binding as between the countries themselves, but will not affect the rest of the EU.
Greece, which had considered participating in the scheme, has now withdrawn.
EU home and justice ministers will seek to finalise a deal at talks next week in Luxembourg that could potentially slash lawyers' fees for divorcees in these countries.
Couples would be able to choose which country's laws should govern their divorce, in a bid to clamp down on so-called "divorce shopping", where nationality or the place where a marriage took place can give one spouse an unfair advantage.
Under the Brussels II bis regulation, where one of the spouses has citizenship or domicile in an EU country which differs from the other spouse, he or she can register his or her intent to divorce in that other country.
Under EU law as it stands, the courts in the Member State in which divorce proceedings are issued first has sole jurisdiction.
But the 12 countries will need backing from others to go ahead, as a qualified majority vote is required to pass the proposal.
The principle of enhanced cooperation, which critics say would create a 'Europe within Europe', has been controversial.
Sweden has previously blocked attempts to harmonise divorce law across the 27 EU states, while Malta only permits legal separation, not full divorce.
Some 300,000 marriages between mixed-nationality couples are celebrated each year in the EU while around 140,000 divorces are announced.
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