The following questions are raised, and must therefore be examined, only in the alternative

C. The detailed rules for the application of Article 10 of Regulation No in the event of unequal access to divorce (second and third questions)

Both the second question, which is divided into two parts, and the third question, which is expressly linked to the latter of those parts, concern the interpretation of Article 10 of Regulation No , which allows the law of the forum to be applied by way of derogation where the foreign law which would in principle be applicable, pursuant to other provisions of that regulation, either does not permit divorce at all ( 76 ) or provides that access to legal separation or divorce varies, as in the dispute in the main proceedings, depending on the sex of the spouses. ( 77 )

These two questions concern the detailed rules for the application of Article 10, first from the point of view of how the discrimination caused by the foreign law must be examined – in the abstract or in each particular case – and, secondly, from the point of view of the significance to be attached to any consent to the unequal divorce given by the spouse discriminated against.

1. Examining the discriminatory nature of access to divorce in the abstract for the purposes of applying Article 10 of Regulation No

In the light of the answer in the negative which I am recommending should be given to the previous question, I do not consider there to be any need to answer the second question. ( 78 ) I shall nevertheless make some observations in this regard for the sake of completeness.

By this question, the referring court asks, in essence, whether Article 10 of Regulation No must be interpreted as meaning that the application of the law of the forum for which it provides must be triggered where the foreign law which would be applicable under Articles 5 or 8 of that regulation ( 79 ) discriminates between the spouses in the abstract (in the light of the content of the foreign law), whether or not it is discriminatory in the particular case (in the light of the circumstances of the instant case). ( 80 )

Mr Mamisch shares that view

The German Government proposes an interpretation of Article 10 to the effect that, when it comes to examining the validity of a private divorce pronounced in another State, the law of the court carrying out that examination applies only if, in the particular case, the applicable foreign law causes discrimination detrimental to one of the spouses.

The French, Hungarian and Portuguese Governments and the Commission, on the other hand, consider it sufficient for the examination of the discriminatory nature of the foreign law for the purposes of applying Article 10 to be carried out in the abstract, without regard to the specific features of the situation of the persons concerned, a view which I share, for all of the reasons set out below.

In the first place , I consider such an interpretation to be consistent with the wording both of Article 10 and of recital 24 of Regulation blackchristianpeoplemeet libre No .

It is true that Article 10 provides no explicit indication as to how it is to be assessed whether the foreign law which would in principle be applicable is disadvantageous to one of the spouses because of his or her sex

However, there is nothing in that article to suggest that a law providing for unequal access to divorce may be ousted by the law of the forum only where the former law produces discriminatory legal effects in the instant case, as the referring court suggests. As the French Government submits, the wording of that article indicates on the contrary that it is sufficient for the applicable foreign law to be discriminatory by virtue of its content for it to be disapplied by the court of a participating Member State.