Evolucija merodavnog prava za razvod braka: od tradicionalnih tačaka vezivanja ka autonomiji volje : srpski ZMPP u svetlu Rim III Regulative
The evolution of the law applicable to divorce with a foreign element: from traditional connecting factors to the modern concept of limited party autonomy – Serbian Private International Law Act in the light of Rome III Regulation

Summary/Abstract: The paper analyses the evolution of the law applicable to divorce with a foreign element – from traditional connecting factors, such as nationality and domicile, to the modern concept of limited party autonomy, affirmed in European Union law through the Rome III Regulation. The focus of the paper is a comparative and normative analysis of the current Serbian Private International Law Act and the solutions provided by the Rome III Regulation, with particular reference to the Draft of the new Serbian Private International Law Act.Starting from the premise that globalisation and increased mobility lead to a growing number of international marriages and, consequently, cross-border divorces, the author emphasises that determining the applicable law in such situations is one of the most complex issues in private international law. Marriage has traditionally been subject to strong state protection, which explains why national systems have long maintained a restrictive approach to recognising party autonomy as a connecting factor in family matters. In this context, the Rome III Regulation represents a significant step forward. It introduces limited party autonomy as the primary connecting factor for divorce, while in the absence of choice it provides for hierarchically ordered subsidiary connecting factors. The paper examines in detail the limitations imposed on party autonomy: the requirement of a connection between the chosen law and the marriage, time limits for concluding a choice-of-law agreement, and the conditions of substantive and formal validity. Particular attention is paid to the protection of the “weaker party” through the requirement of informed and genuine consent. The mechanisms of public policy, both prohibitive and permissive, are also analysed, as well as the exclusion of renvoi in line with the EU’s tendency towards the unification of conflict-of-laws rules and enhanced legal certainty.By contrast, the current Serbian Private International Law Act does not recognise party autonomy as a connecting factor for divorce. It relies primarily on the spouses’ common nationality at the time the action is brought and, subsidiarily, on the cumulative application of the laws of their nationalities. Although coherent and progressive at the time of its adoption, this solution is now criticised for its rigidity and limited adaptability to contemporary social developments. Unlike EU law, Serbian private international law retains nationality as the primary connecting factor and allows for renvoi.The paper argues that these differences stem from distinct conceptual approaches: EU law favours habitual residence as the lex personalis and recognises party autonomy, whereas Serbian legislation traditionally relies on nationality and a strong state role in family matters. Special attention is devoted to the Draft of the new Serbian Private International Law Act, which fully adopts the model of the Rome III Regulation. It introduces limited party autonomy, recognises habitual residence as the principal connecting factor, mirrors the rules on the validity of choice-of-law agreements, excludes renvoi, and incorporates the permissive public policy clause. This reform would enhance flexibility, legal certainty and compatibility with the European legal framework.In conclusion, the author maintains that contemporary developments in private international law clearly support the recognition of party autonomy in determining the law applicable to divorce. Retaining traditional solutions in the current Serbian Private International Law Act appears normatively outdated. Introducing limited party autonomy, accompanied by appropriate safeguards, would establish a balanced system combining private autonomy with the protection of public interests and would represent a necessary step towards the modernisation of Serbian private international law in the field of cross-border divorce.

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