If the law applied to the legal separation does not provide for the conversion of legal separation into divorce, the divorce should be governed by the conflict-of-laws rules which apply in the absence of a choice by the parties.

In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State:

Where no applicable law is chosen, and with a view to guaranteeing legal certainty and predictability and preventing a situation from arising in which one of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he considers more favourable to his own interests, this Regulation should introduce harmonised conflict-of-laws rules on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses and the law concerned.

In order to allow the spouses to choose an applicable law with which they have a close connection or, in the absence of such choice, in order that that law might apply to their divorce or legal separation, the law in question should apply even if it is not that of a participating Member State.

23 In that regard, the Commission states that, while it is true that the Statute of the Court of Justice and the Rules of Procedure of the Court of First Instance permit non-compliance with certain procedural requirements of an application to be cured, by a procedure of rectification, it is no less true that, even in those cases, the consequence of failure to rectify within the period allowed by the Registrar, as is clear from Article 44(6) of those rules, is that the application is inadmissible.

However, having said that, if one or the other party petitions for a divorce, they should be petitioning before a divorce tribunal.