Recognition of a foreign divorce
According to the conclusion of the Advocate General of the Court of Justice of the European Union, a final judgement of divorce has validity in Italy even if proceedings are pending.
Nevertheless, continues the Advocate General, the judge must always verify not only that the judgement does not violate the fundamental rights and the public order principle, but also that the best interests of the child have been guaranteed. If these requirements are not satisfied, the judge can legitimately deny the judgement’s recognition.
This is the opinion of the Advocate General, presented on 6 September 2018 at the CJEU, regarding the case C-386/17.
The Advocate General Yves Bot states that the lis pendens principle aim to create cooperation between the Member States, therefore it applies between different proceedings in different States.
Specifically, according to the Council Regulation (EC) No 2201/2003, the lis pendens operates even between separation and divorce, that have to be considered equivalent.
Furthermore, according to the same Regulation, the national jurisdiction can reject the foreign judgement if it is contrary to public order, whose analysis, however, is hindered by the prohibition of any supervisory control of a Member State jurisdiction.
The Advocate General underlines, moreover, that the violation of the lis pendens principle can imply a violation of fundamental rights recognized by the European Union (such as the right of defence), that can justify a recognition rejection.
Most importantly, concludes the Advocate General, the best interests of the child must guide any judgement in matters of custody and parental responsibility.