Applicable Law for Divorce in the EU: When It Matters and How It Can Change the Outcome (Rome III)

Note: If your main concern is asset division after divorce in Romania, see our separate guide: Partaj bunuri după divorț.

1) What “applicable law” means in an EU divorce

In cross-border family situations, more than one national law could plausibly govern the divorce (different nationalities, moves across borders, living in a country other than your nationality). Rome III is the EU instrument that sets a single conflict-of-law framework to determine which national law applies to divorce or legal separation in the Member States that participate in it. EUR-Lex summary (what the regulation does).

Rome III is about the law used for the divorce (substantive rules), not about which country’s court/authority has jurisdiction to handle the case. The regulation itself says it does not affect the separate EU rules on jurisdiction and recognition (Article 2). Rome III – Article 2 (EUR-Lex).

The European Commission explains this citizen-friendly: EU law provides common rules on which court to file with, and (only in some Member States) common rules on which law that court applies for the divorce. European Commission – Divorce and separation.

2) Where Rome III applies (and where it does not)

Rome III was adopted through “enhanced cooperation”, meaning it is binding only in the Member States that chose to participate. European e-Justice Portal – Rome III (general information).

According to EUR-Lex, it applies in 17 participating Member States: Belgium, Bulgaria, Germany, Estonia, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. EUR-Lex summary (participating countries list).

If your divorce is handled in a non-participating EU Member State, that state continues to use its domestic conflict-of-law rules to determine which national law applies to the divorce. European Commission – Divorce and separation (participation note).

Rome III also has “universal application”: the law it designates can be the law of a participating Member State, a non-participating Member State, or even a non-EU state (Article 4 and Recital 12). Rome III – Article 4 and Recital 12 (EUR-Lex).

3) What Rome III covers (and what it explicitly excludes)

Rome III applies “in situations involving a conflict of laws” to divorce and legal separation (Article 1(1)). Rome III – Article 1(1) (EUR-Lex).

It explicitly does not apply to a long list of related issues, including: validity of marriage, property consequences of marriage, parental responsibility, maintenance obligations, trusts, and successions (Article 1(2)). Rome III – Article 1(2) (EUR-Lex).

In practical terms, Rome III mainly influences the grounds and pathway to divorce/legal separation. The regulation clarifies that the law determined under its conflict rules applies to the grounds for divorce/legal separation, while issues like property, name, parental responsibility, maintenance, and other ancillary measures are governed by other conflict rules in the relevant state. Rome III – Recital 10 (EUR-Lex).

4) The core tool: a limited choice-of-law agreement

Rome III gives spouses a limited autonomy: they can choose the law applicable to divorce or legal separation, but only from a closed list of laws connected to their life (Article 5(1)). Rome III – Article 5 (EUR-Lex).

You can choose one of these options:

the law of the state where the spouses are habitually resident when the agreement is concluded (Article 5(1)(a)); source.
the law of the state of the spouses’ last habitual residence, if one spouse still resides there when the agreement is concluded (Article 5(1)(b)); source.
the law of the state of nationality of either spouse at the time the agreement is concluded (Article 5(1)(c)); source.
the law of the forum (where the authority is seized) (Article 5(1)(d)); source.

Timing: when can you choose?

The agreement can be concluded or modified at any time, but no later than when the authority is seized (Article 5(2)). If the forum allows it, spouses may also designate the applicable law during the proceedings, recorded in court (Article 5(3)). Rome III – Article 5(2)-(3) (EUR-Lex).

Formal validity: what does a valid agreement look like?

Minimum requirement: the agreement must be in writing, dated and signed by both spouses. Electronic communications can count as “writing” if they provide a durable record (Article 7(1)). Rome III – Article 7(1) (EUR-Lex).

Some participating Member States impose additional formal requirements depending on where the spouses are habitually resident at the time of the agreement (Article 7(2)-(4)). This is a common practical pitfall: a generic template may not satisfy the formalities that apply to your specific situation. Rome III – Article 7(2)-(4) (EUR-Lex).

Consent and material validity: a built-in safeguard

Rome III includes rules on consent and material validity. The default rule looks to the law that would govern the agreement if it were valid (Article 6(1)), but a spouse may rely on the law of their habitual residence at the time the authority is seized to show lack of consent where it would not be reasonable to assess their conduct under the otherwise-applicable law (Article 6(2)). Rome III – Article 6 (EUR-Lex).

5) If you do not choose: the default cascade decides for you

If there is no valid choice under Article 5, Rome III applies a strict order (Article 8): Rome III – Article 8 (EUR-Lex).

law of the state where the spouses are habitually resident when the authority is seized (Article 8(a));
if not, law of the state of the spouses’ last habitual residence, if it ended not more than 1 year before the authority was seized and one spouse still resides there (Article 8(b));
if not, law of the state of which both spouses are nationals when the authority is seized (Article 8(c));
if not, law of the forum (where the authority is seized) (Article 8(d)).

If legal separation is converted into divorce, the law applied to the legal separation generally continues to apply (Article 9(1)), unless the spouses choose otherwise; and if conversion is not possible under that law, Article 8 applies (Article 9(2)). Rome III – Article 9 (EUR-Lex).

6) Why the applicable law can change the “real” outcome

Different countries have different divorce rules. That diversity is why EU-level “which law applies” guidance matters for international couples. The EU citizen portal explains that when one or both spouses live or lived in another EU country, you need to understand which country’s rules apply. Your Europe – Divorce and legal separation.

Rome III is designed to increase legal certainty, predictability and flexibility, and to prevent a situation where one spouse files first to secure a law they consider more favourable (Recital 9). Rome III – Recital 9 (EUR-Lex).

What, exactly, can change? Rome III clarifies that the law determined under its conflict rules applies to the grounds for divorce and legal separation (Recital 10). That can influence how the authority assesses the basis for divorce and the legal pathway built around that basis. Rome III – Recital 10 (EUR-Lex).

Two important guardrails are built in:

Forum-law safety valve: if the law applicable under Article 5 or Article 8 makes no provision for divorce or does not grant equal access to divorce/legal separation on grounds of sex, the law of the forum applies (Article 10). Rome III – Article 10 (EUR-Lex).
Public policy clause: application of a provision of the designated law may be refused only if it is manifestly incompatible with the forum’s public policy (Article 12). Rome III – Article 12 (EUR-Lex).

7) Common risks if you do not clarify the applicable law early

You assume the authority will apply “your” national law, but Article 8 points elsewhere. Habitual residence (and last common habitual residence) can be decisive. Rome III – Article 8 (EUR-Lex).
You mix up divorce law with property, children, or maintenance. Rome III excludes these matters (Article 1(2)), so they must be analysed separately. Rome III – Article 1(2) (EUR-Lex).
Your agreement exists, but it is formally invalid. Rome III requires writing, date and signatures at minimum and can trigger extra formalities (Article 7). Rome III – Article 7 (EUR-Lex).
Consent is later disputed. Rome III has specific rules and safeguards on consent/material validity (Article 6). Rome III – Article 6 (EUR-Lex).
You ignore that Rome III is “universal”. Even in a participating Member State, the designated law can be a non-participating or non-EU law (Article 4). Rome III – Article 4 (EUR-Lex).
You underestimate forum-law limits. Public policy (Article 12) and the forum-law safety valve (Article 10) can override the designated law in specific circumstances. Rome III – Articles 10 and 12 (EUR-Lex).

8) A practical diaspora checklist (step by step)

Use this sequence to keep the Rome III issue under control:

Map your cross-border links: nationalities, where you lived together, where each spouse lives now, and any recent moves (dates matter for Article 8(b)). Rome III – Article 8(b) (EUR-Lex).
Identify the divorce authority you plan to use: Rome III applies only if that authority is in a participating Member State. EUR-Lex summary (where it applies).
Check whether you have a valid “choice” option: see the closed list in Article 5(1) (habitual residence, last habitual residence, nationality, forum). Rome III – Article 5(1) (EUR-Lex).
Stress-test the “default” outcome: if you do nothing, apply the Article 8 cascade to your facts and see where it points. Rome III – Article 8 (EUR-Lex).
Separate the divorce-law analysis from children and assets: Rome III excludes parental responsibility and property consequences (Article 1(2)). Rome III – Article 1(2) (EUR-Lex).
Draft the agreement to survive scrutiny: comply with the minimum form (writing, date, signatures) and check whether extra formal requirements apply to your situation. Rome III – Article 7 (EUR-Lex).
Document consent and understanding: Rome III emphasises informed choice and has a consent safeguard (Article 6). Rome III – Article 6 (EUR-Lex).
Plan for the “guardrails”: check Article 10 and Article 12 if there are sensitivity issues that could trigger forum-law overrides. Rome III – Articles 10 and 12 (EUR-Lex).

9) Examples (hypotheticals based on the regulation’s rules)

These examples illustrate the regulation’s connecting factors. They are not tailored legal advice.

Example 1: Choosing the law of nationality

Spouse A is Romanian, Spouse B is Italian. They live in Germany (a participating Member State). They can agree that their divorce is governed by Romanian law or Italian law (nationality of either spouse), or by German law (habitual residence), or by the law of the forum (if they file there). Rome III – Article 5(1) (EUR-Lex).

Example 2: No agreement, so Article 8 decides

A couple lived together in Spain, then moved to Portugal and both still live there when the divorce is filed in Portugal. With no valid choice, Portuguese law applies under Article 8(a) (habitual residence at the time the authority is seized). Rome III – Article 8(a) (EUR-Lex).

Example 3: A recent move and the one-year look-back

The spouses’ last common habitual residence was France. Their common residence ended 10 months ago, but one spouse still resides in France and the divorce is filed now in a participating Member State. If there is no agreement, Article 8(b) can point to French law because the last common habitual residence ended not more than one year before the authority was seized and one spouse still resides there. Rome III – Article 8(b) (EUR-Lex).

Example 4: Safety valve when the designated law offers no divorce

If the law designated under Article 5 or Article 8 makes no provision for divorce, the forum’s law applies instead (Article 10). Rome III – Article 10 (EUR-Lex).

10) When a strategic review is worth it (premium-fee scenarios)

Rome III is short, but applying it to real facts can become complex quickly. A premium-fee engagement is usually justified when at least one of the following is true:

High mobility: several moves during the marriage or a recent move, where the Article 8 cascade is sensitive to dates and residence facts (especially the one-year rule in Article 8(b)). Rome III – Article 8 (EUR-Lex).
Mixed couple: different nationalities or strong ties to multiple states, where Article 5 options can point to different national laws. Rome III – Article 5 (EUR-Lex).
Children are involved: parental responsibility is excluded from Rome III, so you need a separate, coordinated analysis rather than assuming the “divorce law” controls everything. Rome III – Article 1(2)(f) (EUR-Lex).
Multi-state assets or complex finances: property consequences of marriage are excluded from Rome III, and EU instruments exist specifically for international couple property regimes. Rome III – Article 1(2)(e) (EUR-Lex); European Commission – Property of international couples; e-Justice Portal – Matrimonial property regimes.
Non-EU elements: if one spouse is linked to a non-EU country, remember the regulation’s universal application can designate non-EU law (Article 4), which may require careful handling of foreign-law content. Rome III – Article 4 (EUR-Lex).
Consent and validity risk: where there is pressure, language barriers, or unequal information, Article 6 consent safeguards and Article 7 formalities become central. Rome III – Articles 6 and 7 (EUR-Lex).

11) Conclusions (what to remember)

Rome III is about the law applied to divorce, not the place you file. Rome III – Article 2 (EUR-Lex).
It currently applies (per EUR-Lex) in 17 participating EU Member States. EUR-Lex summary.
If you do nothing, Article 8 decides through a cascade. Rome III – Article 8 (EUR-Lex).
If you do choose, your choice must fit Article 5 and be valid under Articles 6-7. Rome III – Articles 5-7 (EUR-Lex).
Do not assume the chosen divorce law also governs children or assets. Rome III excludes those topics. Rome III – Article 1(2) (EUR-Lex).

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