International divorce in the EU: Brussels IIb (jurisdiction) and Rome III (applicable law) in plain terms

I advise clients in cross-border family matters. Below is a simple map: where to file (Brussels IIb) and which law applies (Rome III).

One-minute map

• Brussels IIb: says which EU country’s court can hear a divorce and how decisions are recognised across the EU.
• Rome III: says which country’s law the court will use for the divorce/legal separation (choice of law).
• Note: Brussels IIb applies in all EU Member States except Denmark. Rome III applies in the participating Member States under “enhanced cooperation”.

Where do we file? (Brussels IIb — simple grounds)

The case can be filed in the courts of the Member State:

• where both spouses are habitually resident;
• or where they were last habitually resident (if one still lives there);
• or where the respondent lives;
• or, for a joint application, where either spouse lives;
• or where the applicant lives, if he/she lived there for at least 1 year before filing;
• or where the applicant lived for 6 months before filing and is a national of that State;
• or the State of the common nationality of both spouses.

“Habitual residence” is about the real centre of life: stable presence, not just visits.

Which law applies? (Rome III — two routes)

1) By agreement (recommended if available)

Spouses may choose, in writing, one of these laws to govern their divorce/legal separation:

• the law of the country where they are habitually resident when they sign;
• the law of their last common habitual residence (if one still lives there);
• the law of the nationality of either spouse; or
• the law of the court seized (lex fori).

2) No agreement? (default order)

1. law of the country where spouses are habitually resident when the court is seized;
2. failing that, law of their last common habitual residence (if ended ≤ 1 year before filing and one still lives there);
3. failing that, law of the country of their common nationality at filing;
4. failing that, the law of the court seized.

Rome III is “universal”: it may point to the law of a participating Member State, a non-participating Member State, or even a non-EU State.

Typical questions I get

“We live in different countries. Can we both file?”

Often yes. Brussels IIb offers several grounds. The court first seized will generally keep the case. Good coordination avoids duplicate proceedings.

“We prefer a neutral law. Can we choose it?”

Possibly. If Rome III applies and the neutral law fits one of the allowed connections (habitual residence, last residence, nationality, or forum), a written choice is valid.

“What about children?”

Parental responsibility (custody, access) follows separate Brussels IIb rules centred on the child’s habitual residence. This article focuses on divorce/legal separation only.

“Germany case, foreign law?”

Yes, Rome III can lead a German court to apply foreign law. This is normal under the Regulation.

My quick starter plan (5 steps)

1. Timeline & first filing: decide the best forum under Brussels IIb; avoid parallel cases.
2. Choice-of-law check: if Rome III applies, decide whether a written choice helps (fairness, predictability, procedure).
3. Evidence of residence: keep simple proof of where each spouse lives (leases, registrations, school records, etc.).
4. Children: if involved, map which court has parental-responsibility jurisdiction and plan interim arrangements early.
5. Recognition: plan for recognition/enforcement of the decision in the other country from the start.

FAQs (short)

Does Brussels IIb apply to Denmark?

No. Brussels IIb applies between all EU Member States except Denmark.

Can we still pick a law if our State is not in Rome III?

Rome III binds only the participating Member States. But its rules are “universal”: a participating court can still apply a non-participating State’s law if Rome III points to it.

Call to action

Schedule a personal consultation. I will identify the strongest forum under Brussels IIb, prepare (or review) a Rome III choice-of-law agreement where possible, and set a clear plan for recognition and enforcement.

Further reading (official)

• Brussels IIb — jurisdiction, recognition and enforcement
• Rome III — law applicable to divorce and legal separation
• EU e-Justice — Brussels IIb overview & tools
• EU e-Justice — Divorce & legal separation (Rome III)

Disclaimer: This article provides general information and does not replace individual legal advice.