The Applicable Law on Divorce and the "Ordre Public" Reservation in Greek Conflict of Laws

AuthorZoé Papassiopi-Passia
PositionAssociate Professor of Private International Law, Aristotelian University of Thessaloniki, Greece
Pages1227-1239

Page 1227

Associate Professor of Private International Law, Aristotelian University of Thessaloniki, Greece. In the matter of the applicable law on divorce, Greek conflict rules address the question of the determination of the law applicable to the individual divorce case in more or less the same manner as most legal systems in continental Europe: that is, legal situation, automatically established by the corresponding concept of substantive law, connection, in the form of a succession of connecting factors, and applicable domestic or foreign law. By contrast, the codification of private international law in Louisiana (which was drafted by Professor Symeon Symeonides, an old friend and colleague from the Aristotle University of Thessaloniki, Greece), adopts a rule which (as the author himself admitted) "is so peculiar that it should not even be considered as a rule of Private International Law." S. Symeonides, Modern Codification Approach to Private International Law: The Case of Louisiana (in Greek), in Révue Hellénique de Droit Européen 952, 974 (1994).

The specific provision of the private international law of Louisiana (Louisiana Civil Code article 3521, which states that domestic courts may grant a divorce or legal separation only for grounds that are clearly provided for in domestic law), which thus imposes the application of the lex fori in cases of divorce or legal separation, demonstrates the continued force in America of the perception that these matters, being of direct concern to the State involved in each instance, touch upon the question of jurisdiction and that the applicable law is therefore the law of the forum.

As an outsider viewing the Louisiana approach to choice of law on divorces (to paraphrase the title of the dissertation published by Symeon Symeonides when he attempted, as a European jurist, to comprehend the American approach to conflict of laws (S. Symeonides, An Outsider's View of the American Approach to Choice of Law: Comparative Observations on Current American and Continental Conflicts Doctrine, (1980)), I am equally disconcerted by the totally different methodological approach taken by Louisiana on matters of divorce in its private international law, compared to corresponding codes in continental Europe.

For the purposes of my participation in this special issue of the Louisiana Law Review in honor of Symeon Symeonides, the spiritual father of the Louisiana codification of private international law, I shall limit myself to a discussion of one small aspect of the methodological approach of Greek conflict rules in matters of divorce and judicial separation: specifically, to the case in which the applicable law is foreign and is contrary to Greek public policy, showing how different our legal system is compared to that of Louisiana.

I Introduction

In a classical conflict of laws system like that of Greece, with its classical and mainly plurilateral choice of law rules embracing the legal situation under adjustment, the connecting factor, and the applicable law,1 however much such a system may have been influenced by the new trends that are appearing around the world, there are always certain mechanisms, like the "ordre public" reservation, that remain unchanged.2 In simple terms, these mechanisms have the happy faculty of Page 1228 being adaptable to time, so that they can accommodate the contemporary requirements of the law.

In the case of divorce, when the Greek judge is obliged by the requirements of the conflict rule of Article 16 of the Greek Civil Code to apply a foreign law, and when such provision upholds the indissolubility of marriage or recognizes the repudiation of a wife by her husband or adopts a method of dissolution of a marriage that is not only unfamiliar but indeed clearly contrary to the perception of divorce expressed in Greek law, it follows that he will be sorely perplexed In the end, he will invoke the public policy reservation of Article 33 of the Greek Civil Code, according to which "the provisions of a foreign law shall not apply if the application thereof is contrary to morality or in general to public policy "3

According to Article 16 of the Greek Civil Code, "divorce and judicial separation shall be governed by the law that governs the personal relations between spouses at the time of the initiation of the divorce or separation proceedings."4. This provision, in conjunction with the provisions of Greek Civil Code Article 14 on personal relations between spouses, takes the following form:

Divorce and judicial separation are governed: (a) by the law of the last common nationality shared by the spouses during the period of the marriage and the initiation of the divorce or judicial separation proceedings, if at that point one of them still has it, (b) by the law of the last common habitual residence shared by the spouses during the period of the marriage and the initiation of the divorce or judicial separation proceedings (regardless of whether either of the spouses still maintains it), (c) by the law to which the spouses are most closely connected at the time of initiation of the divorce or separation proceedings. Page 1229 The connecting factors cited are serial, meaning that if the judge of the forum is unable to apply the first he will turn to the next, which thus from a subsidiary connection becomes a principal connection.

If, in application of Greek Civil Code Article 16, the Greek judge is led to apply a foreign law to the relevant case of divorce brought before him, he must weigh and appreciate whether such application, and in particular the application of the specific foreign provision, is reconcilable with domestic public order and morality "Application" of the foreign provision, therefore, means not only the legal consequence that will result through the Article 16 rule, but also the effect that this legal consequence will have on any decision relating to its implementation. 5 It is impossible to formulate sure and certain criteria which the judge of the forum may apply in his efforts to determine whether a foreign provision is contrary to domestic public policy. This is something that can only be decided for each specific case that is brought before the courts for adjudication.

The content of the public policy reservation, of course, varies not only from place to place, that is to say in different states, but also from time to time. And the character of the public policy reservation is current, meaning that it draws its content from the fundamental social, political and moral perceptions prevailing in domestic public policy at any given time.

It is obvious that these perceptions are subject to the effects of time. Thus, something that at one time is held to be contrary to public policy is not so regarded at another. For example, prior to the institution of Law 1329/1983 (which amended certain provisions in the Civil Code, in the Code of Civil Procedure and in other Codes because of the introduction of the principle of equality of sexes), divorce by consent was held to be against Greek public policy.6 Today, however, the dissolution of a marriage by common consent of the spouses, which is now recognized by substantive Greek law as a valid ground for divorce, is no longer held to be contrary to public policy in Greece.

Moreover, the legislative reform that was effected in Greece with the passage of Law 1329/1983 was itself the result of the need that had arisen out of the different attitude to divorce in contemporary society in relation to its moral and social perceptions of justice.7

It is equally probable that what today constitutes a fundamental concept of Greek legislation may in the near future cease to be a basic and fundamental concept of domestic law and order. A change in the content of the public policy reservation is usually signalled by a change in those provisions in domestic legislation that shape the perception of justice in a certain area of our law. For there Page 1230 to be any change in legislation, therefore, there must first be a clear and indisputable change in the fundamental perceptions of domestic law and order.8

Consequently, the judge of the forum cannot merely ascertain whether in general the specific foreign provision is contrary to domestic law, but he must also determine in particular whether the application of such provision really endangers the validity of the fundamental moral and socio-economic values of the domestic system of justice.9 These fundamental concepts are deduced from the spirit of the entire body of Greek legislation.

With regard to the application of foreign provisions on divorce by the Greek judge, we must distinguish between cases where the foreign provision is invoked through the conflict rule in Greek Civil Code Article 16 as applicable to govern a case where the divorce is the principal matter, and cases where the divorce is an incidental question. While the judge may invoke the public policy reservation in both of these situations, the specific approach adopted in each of the two cases may well have been different. The same may be said in cases where the public policy reservation is invoked in the recognition of a foreign divorce as res judicata in the domestic legal situation. This last instance, however, is outside the scope of this present article.

II Applicable Foreign Law On Divorce And Legal Separation And The Ordre Public Reservation

The invocation of the Greek Civil Code Article 33 public policy reservation in cases of divorce has varied considerably in Greek private international law, both in theory and in case law.

Formerly, it was accepted that for a divorce to be granted in Greece by application of foreign law, the grounds...

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