Extrajudicial Divorce in Private International Law of the European Union

Over the past two decades, a clear trend towards various forms of extrajudicial divorce has emerged across the European Union, primarily to reduce the burden on the courts. Spouses may obtain a divorce by mutual consent before non-judicial bodies, such as notaries or civil registrars. The laws of the Member States differ considerably, both in terms of the competent authority and its role in the procedure. While some authorities merely confirm the spouses’ consent, others have the power to assess whether the conditions for divorce are met and may even refuse it. In Slovenia, this power was conferred on notaries by the Family Code adopted in 2019. Extrajudicial divorces raise key questions in EU private international law, in particular as regards the applicability of the Brussels IIb and Rome III Regulations, which formally bind only national courts. The article examines whether, and to what extent, these Regulations may apply to divorces before non-judicial authorities and critically examines the functional test developed by the Court of Justice of the European Union in Sahyouni and Senatsverwaltung. The article also considers this case law in the context of notarial divorce under Article 97 of the Slovenian Family Code.

Keywords: Brussels IIa Regulation, Brussels IIb Regulation, Rome III Regulation, Senatsverwaltung, judgment, decision, authentic instrument, notary.