IF YOU speak only English but have chosen to live in Corfu and become increasingly fed up with your Italian spouse, you will more than likely find yourself getting a divorce in a Greek court.

Legislation governing separation and divorce in each EU member state may come as a shock to couples because each country has its own, different laws. Yet under European regulations, if a couple comes to divorce, the laws of their country of origin may not be available to them. Furthermore, their “own” law may still be wrongly applied at great expense and in a completely different language by the country in which they are now resident. And what about unmarried couples? For them, in many countries, there is no hope.

Leading lawyers gathered recently in London for a conference — The Impact of European Legislation on Domestic Family Law — to address the issue because within the next few weeks the European Union will issue a Green Paper to stimulate debate on the harmonisation of family law across member states.

No fewer than 360,000 people, many of them families, moved abroad in 2004 according to figures from the Office for National Statistics. The trend shows no signs of abating — the lure of a more relaxed way of life has a powerful attraction. But what happens if that new life fractures and the relationship ends on foreign shores?

The European Commission is considering to what extent there should be harmonisation between the divorce laws of all member states given their differing legal systems, practice and procedure. The Commission’s aims are to establish a common judicial area in which each country would recognise judgments made in others. A public consultation on law and jurisdiction in divorce, known as Rome III, has been launched to follow on an EU regulation known as Brussels II. The latter regulates jurisdiction in divorce, among other things. The only basis on which a divorce petition can now be issued in a member state are set out in Brussels II and broadly require habitual resident, nationality or, in England and Wales, domicile.

Where two spouses are English but living elsewhere in the EU, for instance, they may find it difficult to bring their case before an English court. They will have to prove that they both remain domiciled in England, so if all the legal links have been severed, perhaps for tax reasons, it may be impossible to achieve a hearing under English law. Many couples may fall into this trap

Yet bizarrely, a Scandinavian couple who have moved to Ireland may find they are able to divorce only in Ireland and are therefore bound by the four-year wait specified by Irish law. In Finland there is only a six-month “consideration period”. In Malta divorce is not recognised at all, while in France it is a mandatory requirement to enter into a form of conciliation before a petition may be issued. In England there is no such requirement, but an English couple living across the Channel may wish to avoid this forced conciliation and find themselves unable to do so.

How can this be right? Should couples not be entitled as far as possible to choose the appropriate court? Usually finances determine the size and nature of proceedings in a particular court, but under Brussels II, the court before which the proceedings is first heard is the court that deals with the case. The court is not required to carry out any kind of test to determine the most appropriate legal system to use when dealing with a European divorce. Instead, couples are left with a simple, first-past-the-post system that may leave interests clashing and either spouse substantially out of pocket. It may be preferable for a wife to issue a petition in England. Her husband may do better in Spain.

And what about those occasions when lawyers in one country do attempt to apply the legal system from another? Recently, I advised an English wife about a likely settlement in the English courts for the benefit of the Luxembourg lawyers who were trying to grasp English common law. The outcome did not reflect what would have happened in England to either husband or wife. But perhaps that was inevitable. Does being able to pass judgment in the law of one country immediately render you expert to pass judgment under the laws of another?

The idea floated in Rome III is whether to extend this process across all member states. Well intentioned, maybe, but in my view a complex, expensive and likely to generate injustice.

In England, English law is applied no matter the nationality of the litigant. The same principle applies in Cyprus, Denmark, Finland and Ireland. In the Netherlands, Italy and Hungary, by contrast, it is possible to choose between the national law and the law of a litigant’s country of birth.

Other legal systems are applied in other countries, depending on a number of relevant “connecting factors”. It is truly dizzying trying to imagine the cost and the outcome of a system in which the courts in different countries apply the laws of different states. The status of cohabitants and same-sex couples is even more complex in Europe.

Would we not be better off without an EU-wide policy in this field of civil justice? In England we have a proud legal history and I believe that our system of family law is among the fairest in the world. Our legal system has inspired similar systems around the world and it is to be hoped that a slavish devotion to “harmonisation” doesn’t throw us off course and tarnish one of our country’s greatest achievements.

The author is head of the family law unit at Grahame Stowe Bateson, Harrogate

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