Boşanma Ve Ayriliğa Uygulanacak Hukuk Konusundaki̇ Avrupa Konseyi̇ Roma Iii Tüzüğü Kapsaminda Hukuk Seçi̇mi̇

Abstract

The evolution observed in family law from status to contract resulted in expansion of party autonomy principle in family law with some limitations. Although, parties also have party autonomy under the status understanding, it is limited to pecuniary relations in family law. With the evolution from status to contract, parties can determine not only rights and obligations relating to pecuniary relations but also to other fields of family law. Parties can even determine causes of divorce. In some legal systems non-fault divorce concept has developed. Under this concept divorce can occur based on demand of a party. The effect of these developments in substantial law is providing choice of law in conflict of laws issues in the field of family law. The right of the parties to choose a legal system that has a connection to them based on nationality or habitual residence or to choose lex fori for their divorce cases under Rome III Regulation on the Law Applicable to Divorce and Legal Seperation is recognised based on these developments. Choice of law enhances predictibility and legal security in the field of family law matters as in the other fields of conflict of laws. Moreover, it will prevent indirect choice of law through forum shopping. The theorotical discussions and justifications relating to use of connecting factors of personal status that are nationality, domicile and habitual residence become ineffective after recognition of choice of law. In this article, the evolution of family law and the development of conflict of laws relating to family law and divorce matters based on that evolution and the choice of law provided by Rome III Regulation in this context is analysed in detail.