The Brussels II Regulation 2003

CHAPTER II JURISDICTION (in matrimonial matters)

The forums of jurisdiction adopted are designed to meet objective requirements, are in line with the interests of the parties, involve flexible rules to deal with mobility and are intended to meet individuals' needs. Only objective grounds appear in Article 3 and they are subject to the examination as to jurisdiction provided for in Article 9. The grounds in Article 3 are therefore set out as alternatives and inclusion in either (a) or (b) is not to be interpreted as an order of precedence. The grounds set out in this Article are the only ones which can be used for the matter covered; the list is therefore exhaustive and closed.

The grounds for determining the jurisdiction of a State's courts to rule on matrimonial matters coming within the scope of the Regulation are based on the principle of a genuine connection between the person and a Member State. (...). The grounds in point (a) of paragraph 1 include the following:

• that international jurisdiction should lie with the courts of the place in which the spouses are habitually resident at the time of application;
• the jurisdiction of the courts of the State in which the spouses were last habitually resident, in so far as one of them still resides there;
• place in which the respondent is habitually resident;
• in the event of a joint application, the application may be made to the authorities of the place in which either spouse is habitually resident.

In addition to these criteria, there are two others applicable in exceptional cases, based on the forum actoris in conjunction with other conditions. Consequently, the following are also accepted:

• jurisdiction may lie with the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least a year;
• jurisdiction enjoyed by the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made, provided that that State is the State of nationality. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

Where the court of a Member State does not have jurisdiction at all, it must declare of its own motion that it has no jurisdiction, but is not required to transfer the case to another court. However, in so far as the protection of the best interests of the child so requires, the national court which has declared of its own motion that it has no jurisdiction must inform, directly or through the central authority designated under Article 53 of the Brussels II Regulation (No 2201/2003) the court of another Member State having jurisdiction (ECJ 2 April 2009, Case C-523/07, ECR 2009 Page I-02805).

Section 1 (Chapter II) Divorce, legal separation and marriage annulment

The Brussels II Regulation points out which Member State has jurisdiction over legal requests for a divorce, legal separation or a marriage annulment. This only applies insofar the request intents to break the matrimonial link itself. The Brussels II Regulation also regulates the recognition of judgments which have established a divorce, legal separation or a marriage annulment in other Member States. It, however, has no meaning for the enforcement of such judgments in other Member States, because it is only applicable to proceedings relating to the marriage link as such, i.e. divorce, legal separation and marriage annulment. Despite the fact that these subjects may be interrelated to other matrimonial matters, such as property consequences of a marriage (division of community property), maintenance obligations (alimony on behalf of the former spouse or the children) or other possible accessory measures (the right to a name, etc.), the Brussels II Regulation does not affect these issues at all.

So in interstate matrimonial matters one has to determine first which Member State has jurisdiction to break the matrimonial link between the spouses. This question must be answered in due observance with the Brussels II Regulation. After it has been established which Member State has jurisdiction to end the marriage, its courts can give a judgment on the request of (one of) the spouses for a divorce, legal separation or marriage annulment. But in order to do so, the designated court has to find out first if the request to end the marriage is legitimate. This has to be done in accordance with the law that’s applicable to the marriage. Usually this is the national law of the Member State whose court in fact has jurisdiction over the filed request to end the marriage. But it’s possible that this question has to be answered by means of the national law of another country.

Up till now there is no European Regulation or Convention that answers the question which matrimonial law is applicable to a marriage. Although as from 1 March 2006 a new Chapter is inserted into the Brussels II Regulation which covers this subject, it is not yet in force at this moment. The new Chapter IIA is introduced to harmonise conflict-of-law rules in matters of divorce and legal separation, based in the first place on the choice of the spouses. There are no other Conventions that point out which national law applies to a marriage.

Anyhow, the Brussels II Regulation does not deal with issues as the ground for a divorce, the fault of the spouses, the formal procedure to end the marriage and so on. Only after the court with jurisdiction has ended the marriage in accordance with the applicable national law of its State or of another country, the Brussels II Regulation may show up again. A possible consequence of a divorce, legal separation or marriage annulment is the need to adjust registration at public records, like those of the registrar's office, or at the Tax Authorities. This requires that the registrar's office or Tax Authorities recognize the judgement of the courts of another Member State which has ended the marriage. That’s why the Brussels II Regulation also arranges how judgments of the court of a Member State, which have established a divorce, legal separation or marriage annulment, are to be recognized by other Member States.

The general rule is that a judgment, given in a Member State, will automatically be recognised in other Member States, without any special procedure being required (Article 21, paragraph 1, BR II. In particular no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State (Article 21, paragraph 2, BR II. So the national and local governments (Municipality’s registrar's office) and administrative services (Tax Authorities, Aliens Police Registration Department) have to recognize a judgment of the court of another Member State automatically. Nevertheless these authorities have the possibility to refuse the recognition of such a judgment, but only on specific grounds, which are mentioned in the Brussels II Regulation.

If the authorities of a Member State have recognized or refused to recognize a judgment of the court of another Member State which has established a divorce, legal separation or marriage annulment, any interested party may apply for an independent decision of the court of the Member State whose authorities it concerns, not to recognize or to recognize the judgment of the court of the other Member State (Article 21, paragraph 3, BR II). To file such a request the interested party has solely to present a certificate to the court that has to make this decision. This certificate is drawn up by the court of the Member State which has proclaimed the divorce, legal separation or marriage annulment. The court who has to consider the request for a recognition, is not allowed to review the judgment of the court of the other Member State to its substance. Nor is it allowed to verify if the court of the Member State of origin really had jurisdiction over this matter or whether it has applied the correct national law to the matter of divorce, legal separation or marriage annulment. It can only refuse recognition on the grounds mentioned in Article 22 BR II.

But a divorce, legal separation or marriage annulment can have more difficult consequences than the need to adjust civil-records. Although a divorce, legal separation or annulment ends the marriage, this in itself is not the end of all legal relationships between the spouses which are based on the broken marriage. Other relationships, which came into force because of the marriage, still exist. Generally the former spouses are, for example, still linked to each other through common property and/or their children. And as a rule the national law which governed the marriage forces the former spouses, even after the marriage has ended, to take care of each other and their children financially, at least for a number of years. This manifests itself through the formation on the base of the applicable national law of one or more maintenance obligations. As mentioned before, the Brussels II Regulation has no impact on these issues either. They are dealt by the national law of the State whose law is applicable to the marriage. Matters relating to maintenance, however, are covered by the Brussels I Regulation (Council Regulation (EC) No 44/2001) and the Hague Conventions in so far it concerns jurisdiction, recognition and enforceability.

The above questions only arise after the marriage has ended. Often it is necessary to file a lawsuit in order to get an answer to these questions. If, for instance, one of the former spouses refuses to support the other financially, then the court can force him to observe his maintenance obligation. Sometimes such a lawsuit has to be filed at a court of another Member State than that where the divorce, legal separation or annulment is proclaimed. See for questions about jurisdiction, recognition and enforcement of judgments on maintenance obligations the relevant provisions of the Brussels I Regulation. It is also possible that the former spouses still own community property in different Member States. This can lead to a lawsuit to end this community property in the Member State where the property is located. The Brussels II Regulation has no meaning for these issues other than that the judgment which has established the divorce, legal separation or marriage annulment has to be recognized as such in the other Member State, where the lawsuit concerning the maintenance obligations or division of community property must be filed. The divorce, legal separation or annulment is, after all, the foundation for these lawsuits. A judgment which has established the divorce, legal separation or marriage annulment can’t actually be enforced itself, since it has no other legal effects than that the marriage is ended. But it can be necessary to get it recognized in another Member State, this to be able to start on that base other legal proceedings there.

Again, the general principle is that a court of a Member State, where a lawsuit is filed related to maintenance obligations or the division of community property, automatically has to recognize the judgement of the court of another Member State which has ended the marriage (Article 21, paragraph 1, BR II). And again, this court can only refuse recognition on the grounds mentioned in Article 22 of the Brussels II Regulation. It may consider this matter of its own motion. But it is also possible that one of the parties at the lawsuit argues that the judgment of the court of the other Member State cannot be recognized as such or, reversed, that it is a valid judgment which has ended the marriage, so that it must be recognized for itself by the court of another Member State. Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue (Article 21, paragraph 4, BR II). But also in that case the court can only refuse the recognition of the judgment of the court of another Member State on the specific grounds mentioned in Article 22 of the Brussels II Regulation.

The end of a marriage also raises questions about parental responsibility with regard to the children of the former spouses. A judgment on matters of parental responsibility given in a Member State is also recognised automatically in the other Member States without any special procedure being required (Article 21, paragraph 1, BR II, unless one of the specific grounds of Article 22 BR II for the refusal of such a recognition applies.

While, for judgments which have established a divorce, legal separation of marriage annulment, recognition procedures are sufficient, in view of the limited scope of the Brussels II Regulation with regard to these matters and the fact that recognition includes amendment of civil-status records, rules for enforcement are necessary in relation to the exercise of parental responsibility for a child of both spouses who live in different Member States. Therefore the Brussels II Regulation includes specific provisions if a judgment on matters of parental responsibility is to be enforced in another Member State. It has chosen for a so-called ‘exequatur procedure’. One of the spouses has to file a request at the court of the Member State where enforcement is sought. This court examines if the judgment of the Member State of origin meets certain basic conditions, which are laid down in the Brussels II Regulation. It is, however, under no circumstances allowed to review the foreign judgment as to its substance. This means that it is bound to the outcome of the case as settled by the court of the Member State of origin. Neither is the court of the Member State where enforcement is sought, allowed to review if the court of the Member State of origin indeed had jurisdiction to rule over matters on parental responsibility.

As far as it concerns the recognition and enforcement of judgments on access rights and the return of an abducted child, there is, besides the exequatur procedure, another possibility to achieve the wanted result. But only if the court of the Member State of origin adds a specific document to its judgment, which makes this judgment directly enforceable in every other Member State.

The grounds for determining the jurisdiction of a State's court to rule on matrimonial matters coming within the scope of the Brussels II Regulation , are mentioned in Article 3 BR II. These grounds are all founded on the principle that there must be a genuine connection between the involving person(s) and the Member State with jurisdiction. This connection can be that both spouses, or at least one of them, live or previously have lived in a particular Member State, or that both spouses have the nationality of that Member State.

It was felt necessary to establish grounds of jurisdiction in matrimonial proceedings without becoming involved in any examination of the situation in which the validity of a marriage needs to be considered as part of annulment proceedings when one of the spouses is deceased or after the decease of both spouses, since that situation is not within the scope of the Regulation. Such situations arise, in the majority of cases, as preliminary questions relating to successions. Instead, it will be resolved by the international instruments applicable in the matter, such as the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, or according to the internal legislation of the State where that is possible (Borras (1998) C 221/36-37).

Like the Brussels I Regulation 2000 on jurisdiction over civil and commercial matters, which involves an interplay of the general rule laid down in Article 2 and the special grounds of jurisdiction set out in Article 5 , the Brussels II Regulation establishes a general forum (Article 3 BR II) with additional special rules on jurisdiction for exceptional cases (Article 4 up to 7 BR II). This is a breach in comparison to the Brussels II Regulation 2001, where a general forum deliberately was excluded, because it was thought that the peculiarity of the matter covered, did not lend itself to a provision similar to a general forum like that of Article 2 of the Brussels I Regulation (see Borras (1998) C 221/37).

Article 3 of the Brussels II Regulation

Index Article 3

• General jurisdiction in matters of divorce, legal separation or marriage annulment [Art. 3 BR II]
• Grounds related to habitual residence [Article 3(1)(a) BR II]
• Grounds related to nationality [Article 3(1)(b) and (2) BR II]

General jurisdiction [Article 3 BR II]

As mentioned before at the introduction of Section 1 of Chapter II of the Brussels II Regulation, the grounds for determining the jurisdiction of a State's court to rule on divorce, legal separation and marriage annulment are adopted from the principle of a genuine connection between the involving person(s) and the Member State with jurisdiction. The grounds for determining the jurisdiction of a State’s court fall into two groups which are set out in points (a) and (b) respectively of paragraph 1 of Article 3 BR II. Point (a) uses habitual residence in order to determine international jurisdiction, whereas the Brussels I Regulation 2000 uses domicile. In point (b), bearing in mind the specific aspects of certain national legislation, the ground of jurisdiction is either nationality or ‘domicile’ as the term is used in the United Kingdom and Ireland. Under the Brussels I Regulation 2000, a party’s domicile is determined in accordance with the internal law of the State of the forum. In this case, there was discussion as to whether a similar provision should be included in relation to habitual residence: on this issue see hereafter the Boras Report nr. 31. The grounds in Article 3 paragraph 1 are set out as alternatives. An inclusion in either (a) or (b) is not to be interpreted as an order of precedence.

But the grounds set out in Article 3, paragraph 1, under (a) and (b), BR II are the only ones that can be used for the matter covered. The list is therefore exhaustive and closed. Only objective grounds appear in paragraph 1 sub a and b and they are subject to the examination as to jurisdiction provided for in Article 17 BR II. Therefore if a spouse initiates proceedings in a Member State whose courts do not have jurisdiction on any of the grounds set out in Article 3, those courts cannot claim jurisdiction, not even by reason of the fact that the other spouse makes an appearance to contest the application. Instead the court must examine whether it has jurisdiction and if it does not, must decline.

‘29. The grounds set out in this Article are the only ones which can be used for the matter covered; they can therefore be termed ‘exclusive’ (see commentary on Article 7). That term, however, cannot be understood in the same way as in the Brussels Convention where, for certain matters provided for in Article 16 thereof [Article 22 BR I 2000], only the courts of a particular Member State have jurisdiction and that rule takes precedence over other grounds. In the case we are dealing with here, the term ‘exclusive’ must be understood as meaning that only the grounds set out may be used and that they are alternatives none of which takes precedence over the rest. The list is therefore exhaustive and closed. It is therefore not necessary to include a rule similar to the one in Article 28(1) of the 1968 Brussels Convention [Article 35 (1) BR I 2000]’ (Borras (1998) C 221/37).

The grounds of Article 3 BR II for determining the jurisdiction of a State's court to rule on divorce, legal separation or marriage annulment can imply that the courts of two different Member States have jurisdiction over the same lawsuit. Already now is revealed that the Member State that is first seized, has jurisdiction and that any other Member State in which proceedings involving the same cause of action have been commenced later, must stay those proceedings until such time as the jurisdiction of the court first seized is established. Any argument as to jurisdiction is to be determined by the court first seized. Nonetheless in urgent cases the court second seized has the ability to make orders in relation to provisional and protective measures. Provisional measures are not to be used to frustrate internationally agreed principles of jurisdiction and are therefore to be used very sparingly. Maintenance pending suit is not included.

Grounds related to habitual residence [Article 3(1)(a) BR II]

A Member State has jurisdiction if the habitual residence of both spouses or one of them at the time of the application is connected to its territory in one of the following ways:

• both spouses are habitually resident of the Member State or
• both spouses were last habitually resident of the Member State and one of them still resides there, or
• the respondent, thus the counterpart of the applicant, is a habitually resident of the Member State, or
• in the event of a joint application, either of the spouses is habitually resident, or
• the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
• the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile' there.

  ‘31. Of the grounds in point (a) of paragraph 1, the rule that international jurisdiction should lie with the courts of the place in which the spouses are habitually resident at the time of application (first indent) is a ground widely accepted in the Member States and will undoubtedly apply in the great majority of cases. Nor does the ground in the third indent (place in which ‘the respondent is habitually resident’) create any problems in that it corresponds to the general ground based on the principle of actor sequitur. There was also a broad consensus on the ground to apply in the event of a joint application (fourth indent) as the application may be made to the authorities of the place in which either spouse is habitually resident; in that case, it should be noted that, unlike the 1968 Brussels Convention, this Convention allows only a minor role for the spouses’ free choice, which appears only in this limited form: it is logical that it should be so since the issue is matrimonial proceedings’. (Borras (1998) C 221/38)

  ‘32. Acceptance of the other grounds in this paragraph was more problematic. In principle, there should be no objection to the jurisdiction of the courts of the State in which the spouses were last habitually resident, in so far as one of them still resides there (second indent). The problem arising for some Member States was how to reconcile that situation with the situation of the other spouse who, as a result of the marriage breakdown, often returns to his/her country of domicile or nationality prior to the marriage and there comes under the limitations laid down in the fifth and sixth indents, provisions which will undoubtedly have consequences regarding lis pendens (see Article 11). (Borras (1998) C 221/38)

  Both these provisions allow forum actoris in exceptional cases on the basis of habitual residence combined with other elements. That is why the fifth indent allows jurisdiction to lie with the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least a year. Since some Member States did not find the rule set out in those terms sufficient and bearing in mind the frequency with which the spouse’s new residence is in the State of nationality or of ‘domicile’, in the sense in which this term is used in the United Kingdom and Ireland, the sixth indent adds the possibility of having the matrimonial proceedings heard by the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made, provided that that State is the State of nationality or of domicile as defined in the United Kingdom and in Ireland. That provision was introduced as a result of the political compromise adopted in December 1997 following a formal statement by some States that acceptance of that forum was an essential prerequisite of vital importance for an overall compromise solution. The solution takes into account the situation of the spouse who returns to his or her country but does not mean establishing a ground based solely on the forum of the applicant: on the one hand, the existence of nationality or ‘domicile’ demonstrates that there is an initial connection with that Member State; on the other hand, in order to initiate proceedings in that Member State, he or she must have resided there for at least six months immediately before the application was made. The last requirement led to a discussion of establishment of habitual residence, taking account of the situation of the spouse who returns to the country of origin as a consequence of the breakdown of the marriage. The existence of the connection will be assessed by the court. Although the possibility of including a provision determining habitual residence similar to the one in Article 52 of the 1968 Brussels Convention was discussed, in the end it was decided not to insert any specific provision on the matter. However, although not applicable under the 1968 Brussels Convention, particular account was taken of the definition given on numerous occasions by the Court of Justice, i.e. ‘the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence’. Other proposals were therefore rejected whereby it would be sufficient for the applicant to have his or her habitual residence there for a total of at least one year in the five years immediately before the application was made, even when combined with nationality or ‘domicile’. Moreover, the mutual confidence which underlies the preparation of this Convention, like the 1968 Brussels Convention, should be sufficient to overcome the existing reluctance to have a case heard by the courts of another State’. (Borras (1998) C 221/38)

Grounds related to nationality [Article 3(1)(b) and (2) BR II]

A Member State has jurisdiction when both spouses have its nationality or, in the case of the United Kingdom and Ireland, have their ‘domicile' there. For the purpose of this Regulation, ‘domicile' shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.

‘33. Another alternative to the grounds listed above, which for organisational reasons appears in a separate point (point (b) of paragraph 1), is to allow the matrimonial proceedings to take place before the courts of the State of nationality of both spouses or of ‘domicile of both spouses’ established on a long-term settled basis. This provision merits particular attention and comment.

In the first instance, it is worth emphasising that the nationality or ‘domicile’ must be common to both spouses. Some States wanted to allow that condition to apply to only one spouse. That possibility was rejected since it would be equivalent to pure forum actoris, often with no real connection whatsoever with the State in question, and would thus be contrary to the spirit of the Convention.

Establishing the possibility of having the authorities of the State of nationality or ‘domicile’ of both spouses handle proceedings does not mean that the courts of the State can in every instance examine whether one or other of those criteria has been met. What is intended is that in the light of their internal system, States will adopt one or other of the criteria. Hence, just as common nationality may be acceptable to Spain, ‘domicile’ will be the criterion for the United Kingdom and for Ireland. It is precisely for that reason that paragraph 2 of this Article requires the Member States to stipulate in a declaration made when giving the notification referred to in Article 47(2) whether it will be applying the criterion of nationality or of ‘domicile’ referred to in paragraph 1(b).

The Convention is silent on the consequences of dual nationality, so the judicial bodies of each State will apply their national rules within the framework of general Community rules on the matter’. (Borras (1998) C 221/38-39)

‘34. The problems arising from the many language versions of the Convention made it necessary to make some special arrangements for the term ‘domicile’ as it appears in this text but only in relation to this Convention. That is the purpose of Article 2(3). The problems and solutions appearing in the 1968 Brussels Convention have been adverted to. In this instance, when extending the Convention to matrimonial matters and having to include nationality as a criterion for determining international jurisdiction, it was not possible to follow the 1968 criteria. While nationality is a criterion which does not raise any major problems as to meaning, domicile presented a more complex problem since it appears in this text with the meaning it has in the United Kingdom and Ireland. This is the reason why in most texts the equivalent of the word ‘domicile’ appears in inverted commas to indicate that it has a special meaning. There can therefore be no possibility of equating this term with habitual residence as referred to in paragraph 1.

In a detailed document, the United Kingdom delegation provided clarification on the concept of ‘domicile’, purely for the purposes of the Convention without attempting to give a definitive account. The essential purpose of domicile is to connect a person with the country in which he has his home permanently or indefinitely. It is used so as to make that person subject to the law and legal system of that country for several purposes of broad application, principally concerning important matters affecting family relations and family property. In United Kingdom law, the rules for determining a person’s domicile operate generally to ensure that every person has a domicile, and only one domicile, at all times. In addition to rules for determining the domicile of children (domicile of origin), there are rules for establishing the domicile of adults, either by acquisition of a new domicile (domicile of choice) or by revival of the domicile of origin. The same principles apply in Irish law’. (Borras (1998) C 221/39)

Where spouses each hold the nationality of the same two Member States, Article 3, paragraph 1, under (b), BR II precludes the jurisdiction of the courts of one of those Member States from being rejected on the ground that the applicant does not put forward other links with that State. On the contrary, the courts of those Member States of which the spouses hold the nationality have jurisdiction under that provision and the spouses may seise the court of the Member State of their choice (ECJ 16 July 2009 ‘Hadadi v Mesko’, Case C-168/08).

Article 4 of the Brussels II Regulation

Jurisdiction with regard to counterclaims [Article 4 BR II]

The court in which proceedings are pending on the basis of Article 3 BR II shall also have jurisdiction to examine a counterclaim, insofar as the latter comes within the scope of the Brussels II Regulation (Article 4 BR II).

This Article contains the classic rule on counterclaims, giving jurisdiction to the court in which the initial proceedings are pending should a counterclaim be made. The limited scope of the Brussels II Regulation and the frequency with which matters covered by it, arise in connection with other matters, make it necessary to specify that that rule applies only when the subject of both, the initial proceedings and the counterclaim, come within the scope of this Regulation.

This provision has to be seen in conjunction with Article 11 (see commentary on that Article in relation to lis pendens) in order to differentiate between the situations covered by each Article although in practice they may in many cases produce identical effects (Borras (1998) C 221/42 and COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

Article 5 of the Brussels II Regulation

Conversion of legal separation into divorce [Article 5 BR II]

Without prejudice to Article 3 BR II, a court of a Member State that has given a judgment on a legal separation shall also have jurisdiction for converting that judgment into a divorce, if the law of that Member State so provides (Article 5 BR II).

The conversion of legal separation into divorce is fairly frequent in some legal systems. In some States separation is an obligatory step prior to divorce and a stated period of time must usually elapse between the separation and the divorce. That distinction is, however, unknown in other legal systems.

In such instances, in accordance with the provisions of the Regulation it is possible to obtain the divorce either before the courts of the State having jurisdiction under Article 2 BR II or before the courts of the State in which the separation was obtained, it being clearly understood that the fact that conversion is possible does not itself depend on the Regulation but is a possibility allowed under the internal law of the State in question (Borras (1998) C 221/42 and COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E, 31/08/1999)

Article 6 of the Brussels II Regulation

Exclusive nature of jurisdiction under Articles 3, 4 and 5 [Article 6 BR II]

Article 6 BR II should be approached in combination with Article 7 BR II. The limitation on the rules of jurisdiction in Article 6 BR II opens the way to the residual jurisdiction provided for in Article 7 BR II.

Article 6 BR II emphasises the exclusive nature of the grounds contained in the Article 3 to 5 BR II for determining the jurisdiction of a State's authorities on the basis of the Brussels II Regulation. A spouse who (a) is habitually resident in the territory of a Member State, or (b) is a national of a Member State, (or has his or her ‘domicile' there), may only be sued in another Member State in accordance with Articles 3, 4 and 5 BR II (Article 6 BR II). Where the grounds under Article 3 BR II are either the spouse’s habitual residence or his or her nationality or ‘domicile’, an application may be made to a court only in accordance with the rules laid down in Article 3 BR II, with additional possibilities for counterclaims and conversions of legal separations into a divorce in accordance with Article 4 BR II and Article 5 BR II respectively. Therefore, in principle only the criteria listed in Article 3 BR II may be used, as alternatives and without any order of precedence, to conclude if a EU Member State’s court has jurisdiction to rule on divorce, legal separation and marriage annulment. This means that a Member State, according to the Brussels II Regulation, either has jurisdiction to rule on divorce, legal separation or marriage annulment, or it does not have jurisdiction. If the court doesn’t have jurisdiction it is bound to declare of its own motion that this is the case (Article 17 BR II).

It should be noted that the exclusive nature of the jurisdiction established in Article 6 BR II, refers only to matrimonial matters and questions of parental responsibility connected with such cases and does not therefore affect the rules of jurisdiction in matters of protection of minors where they are independent of the matrimonial proceedings. The exclusive nature should be understood without prejudice to the rules laid down in Articles 7(1) BR II (residual jurisdiction) and Article 36(2) BR II (relation to other Conventions).

Articles 6 and 7 BR II are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 BR II. According to the clear wording of Article 7, paragraph 1, BR II, it is only where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the Regulation that jurisdiction is to be governed, in each Member State, by the laws of that State. Moreover, according to Article 17 of the Brussels Regulation, where a court of one Member State is seised of a case over which it has no jurisdiction under that regulation and a court of another Member State has jurisdiction pursuant to that regulation, it is to declare of its own motion that it has no jurisdiction. That interpretation is not affected by Article 6 of the Brussels II Regulation, since the application of Articles 7, paragraph 1, and 17 BR II depends not upon the position of the respondent, but solely on the question whether the court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the Regulation, the objective of which is to lay down uniform conflict of law rules for divorce in order to ensure a free movement of persons which is as wide as possible. Consequently, the Brussels II Regulation applies also to nationals of non-Member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in that regulation, grounds which are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction (ECJ 29 November 2007 ‘Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo’, Case C-68/07).

Article 7 of the Brussels II Regulation

Residual jurisdiction [Article 7 BR II]

Article 7 BR II should be approached in combination with Article 6 BR II. The limitation on the rules of jurisdiction in Article 6 BR II opens the way to the residual jurisdiction provided for by Article 7 BR II. This last Article makes it possible for a Member State to accept jurisdiction on the basis of its own national law, but only in so far as no court of any other Member State has jurisdiction on the basis of the Brussels II Regulation. If a court of another Member State is allowed to admit the lawsuit or legal request, the rule of Article 6 BR II immediately applies: a spouse who (a) is habitually resident in the territory of a Member State, or (b) is a national of a Member State (or has his or her ‘domicile' there), may not be sued in another Member State on the basis of its national law.

This is confirmed by the European Court of Justice (ECJ) in a case were the Swedish Supreme Court (Högsta Domstolen) had asked for a preliminary ruling (lodged on 12 February 2007, ‘Kerstin Sundelind Lopez v Miquel Enrique Lopez Lizazo’, Case C-68/07 (2007/C 82/40)). The respondent in a case concerning divorce was neither resident in a Member State nor a citizen of a Member State. The question was if the case might be heard by a court in a Member State which did not have jurisdiction under Article 3 of the Brussels II Regulation, but that had jurisdiction according to its own national law, even though a court in another Member State might have jurisdiction by application of one of the rules on jurisdiction set out in Article 3 BR II. The ECJ ruled that this was not possible. Articles 6 and 7 of the Brussels II Regulation are, in the opinion of the ECJ, to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of that Member State cannot base their jurisdiction to hear the petition on their own national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation.

But where no court of a Member State has jurisdiction pursuant to Article 3, 4 and 5 BR II, jurisdiction can be determined, in each Member State, by the laws of that State (Article 7, paragraph 1, BR II). The criteria are laid down in the second paragraph of Article 7 BR II: as against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his ‘domicile' within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State (Article 7, paragraph 2, BR II).

Following the provision in Article 6 BR II (exclusive nature of jurisdiction under Articles 3 to 5 BR II), Article 7 BR II deals with arrangements existing in the national legal system which can be used only in the context of this Article. For some States, when one of the spouses resides in a non-member State and none of the jurisdictional criteria of the Brussels II Regulation is met, jurisdiction should be determined in accordance with the law applicable in the Member State in question. To deal with that situation, the solution adopted is an assimilatory one, whereby the applicant who is a national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State. The prerequisite for applying that provision is that the respondent does not have his habitual residence in a Member State and is not a national of a Member State according to the criteria applicable to the case. Such jurisdiction is termed 'residual' in view of its nature and the place it occupies in relation to the grounds of jurisdiction established by the Regulation.

‘Some States have jurisdiction in their internal legal system which can be defined as ‘residual’ for the purposes of [Article 3 of the Regulation]. Some examples thereof are set out below.
In Germany, the rules of jurisdiction provided for in sections (1), (3) and (4) of Article 606a of the ‘Zivilprozessordnung’ could be described as residual; they provide that German courts have international jurisdiction when (1) one spouse is German or was German when the marriage took place; (2) one spouse is stateless and is habitually resident in Germany; or (3) one spouse is habitually resident in Germany, except where any judgment reached in their case could not be recognised in any of the States to which either spouse belonged.
In Finland, under Section 8 of the ‘Laki eräistä kansainvälisluontoisista perheoikeudellisista suhteista’/ ‘Lag angående vissa familjerättsliga förhållanden av internationell natur’ (International Family Relations Act) revised in 1987, Finnish courts will hear matrimonial cases even where neither spouse is habitually resident in Finland if the courts of the State of habitual residence of either of the spouses do not have jurisdiction or if application to the courts of the State of habitual residence would cause unreasonable difficulties and, furthermore, in the circumstances it would appear to be appropriate to assume jurisdiction (forum conveniens).
In Spain the only example would be one of the rules contained in Article 22(3) of the ‘Ley Orgánica del Poder Judicial’ (Law on the judicial system) of 1 July 1985 which allows the application to be made in Spain when the applicant is Spanish and is resident in Spain but does not meet any of the requirements in [Article 3(1) of this Regulation] such as the express or tacit submission referred to in [Article 30(2)]. Apart from that, all the other grounds for international jurisdiction in matrimonial matters which exist in Spanish law are contained in the Convention, these being that both spouses are habitually resident in Spain at the time of the application or that both spouses are of Spanish nationality, whatever their place of residence, provided that the application is made either jointly or with the agreement of the other spouse.
In France, Article 14 of the Civil Code would give French courts jurisdiction if the petitioner had French nationality.
In Ireland the courts would have jurisdiction in matters of annulment (Section 39 of the Family Law Act, 1995) divorce (Section 39 of the Family Law (Divorce) Act, 1996), and legal separation (Section 31 of the Judicial Separation and Family Law Reform Act, 1989), when either of the spouses is domiciled, for the purposes of Article 2(3), in the State on the date of institution of proceedings.
In Italy, the rules laid down in Articles 3, 4, 32 and 37 of Law 218 of 31 May 1995 on the reform of the Italian system of private international law are of this nature.
In the United Kingdom, a distinction has to be made between divorce, separation and annulment proceedings and custody orders relating to such proceedings. With regard to divorce, annulment and legal separation proceedings, this Article may cover grounds of jurisdiction based on the ‘domicile’ of either party in the United Kingdom at the time the application is made or on habitual residence for a year immediately preceding that date. In the case of divorce and separation proceedings, the Sheriff Courts in Scotland have jurisdiction if one party is either resident in the place for 40 days immediately prior to the submission of the application or has resided there for a period of at least 40 days ending not more than 40 days before that date and has no known residence in Scotland on that date. For custody orders contained in divorce, annulment and legal separation judgments, United Kingdom judicial bodies, including the Sheriff Courts in Scotland, will have jurisdiction, but if a court outwith the United Kingdom is conducting relevant proceedings, United Kingdom courts have a wide discretion to decline jurisdiction, provided that those proceedings continue and, in addition, that the proceedings continue before a judicial body that has jurisdiction under its national legislation. In the case of Sweden, the jurisdictional rules of Swedish courts for divorce matters are to be found in the ‘lag om vissa internationella rättsförhållanden rörande äktenskap och förmynderskap’ (Act on certain international legal relations concerning marriage and guardianship) 1904, as amended in 1973. As regards Article 7 of the Convention, Swedish courts have jurisdiction in matters of divorce if both spouses are Swedish citizens, if the petitioner is Swedish and is habitually resident in Sweden or has been so at any time since reaching the age of 18 or if, in other cases, the government gives its consent to the cases being heard in Sweden. The government can give its consent only if one of the spouses is Swedish or the petitioner cannot bring the case before the courts of the State of which he is a national’ (Borras (1998) C 221/44).

Taking into account the grounds of jurisdiction laid down in Articles 3 to 5 of the Brussels II Regulation, Article 7, paragraph 1, BR II sets the boundary between grounds of an exclusive nature established by the Regulation and the principle of applying internal rules of jurisdiction, thus demonstrating the geographical limits of the Regulation. The requirements set out in Article 7, paragraph 2, BR II must be examined in the following sense:

1. the applicant must be a national of a Member State habitually resident in another Member State. Hence the principle of assimilation between citizens of Member States for the purposes of Article 7, paragraph 1, BR II;
2. the respondent must meet two conditions: on the one hand he or she must be habitually resident outside the Member States; on the other hand, he or she must not be a national of a Member State or have his or her ‘domicile’ in a Member State (declaration provided for in Article 3, paragraph 2, BR II). Both conditions are concurrent, otherwise the situation would be one requiring application of one of the grounds in Article 3 BR II (Borras (1998) C 221/44).

So one has to keep in mind that a person who is habitually resident in a specific EU Member State (or is domiciled in the United Kingdom or Ireland) or who’s a national of a certain EU Member State cannot be sued for divorce in another EU Member State, save in accordance with the Regulation (Article 6 BR II).

Articles 6 and 7 BR II are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 BR II. According to the clear wording of Article 7, paragraph 1, BR II, it is only where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the Regulation that jurisdiction is to be governed, in each Member State, by the laws of that State. Moreover, according to Article 17 of the Brussels Regulation, where a court of one Member State is seised of a case over which it has no jurisdiction under that regulation and a court of another Member State has jurisdiction pursuant to that regulation, it is to declare of its own motion that it has no jurisdiction. That interpretation is not affected by Article 6 of the Brussels II Regulation, since the application of Articles 7, paragraph 1, and 17 BR II depends not upon the position of the respondent, but solely on the question whether the court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the Regulation, the objective of which is to lay down uniform conflict of law rules for divorce in order to ensure a free movement of persons which is as wide as possible. Consequently, the Brussels II Regulation applies also to nationals of non-Member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in that regulation, grounds which are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction (ECJ 29 November 2007 ‘Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo’, Case C-68/07).