RAZVOD BRAKA SA ELEMENTOM INOSTRANOSTI U PRAVU SRBIJE: KOLIKO SMO DALEKO OD SAVREMENIH REŠENJA PRAVA EU?

Abstract

The paper deals with a comparative analysis of the regulation of divorce with an international element in the law of the European Union and Serbia. In the EU, due to significant differences in the substantive rules of member states in this field, a noticeable tendency toward the unification of private international law norms has emerged. This has been achieved through two complementary regulations: the Brussels IIb Regulation and the Rome III Regulation (which introduces unified rules for determining the law applicable to divorce and legal separation). The key innovation of the Rome III Regulation is the introduction of party autonomy, allowing spouses to choose the applicable law, while, in the absence of such choice, the subsidiary connecting factors give primacy to habitual residence. Serbian law, regulated by the Law on Resolution of Conflict of Laws with Regulations of Other Countries (ZRSZ), by contrast, is based on the primacy of nationality and a complex system of strict cumulation of two laws, which is impractical and often leads to legal uncertainty. In response to these shortcomings, a Serbian Draft of Private International Law Act (Draft PILA) has been prepared, which directly adopts the solutions from the Rome III Regulation. The Draft introduces party autonomy, prioritizes habitual residence, and abandons cumulation in favor of applying a single law, thereby significantly modernizing and harmonizing Serbian law with European standards.