The Brussels II Regulation 2003 Jurisdiction over matters of divorce, legal separation and marriage annulment
The Brussels II Regulation 2003 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 2003 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 2003 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 2003. 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.
Anyhow, the Brussels II Regulation 2003 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 2003 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 2003 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(1) BR II 2003). 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(2) BR II 2003). 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 2003.
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 2003 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 2003 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(1) BR II 2003). And again, this court can only refuse recognition on the grounds mentioned in Article 22 of the Brussels II Regulation 2003. 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(4) BR II 2003). 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 2003. 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(1) BR II 2003, unless one of the specific grounds of Article 22 BR II 2003for 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 2003 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 2003 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 2003. 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 2003, are mentioned in Article 3 BR II 2003. 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 2003 establishes a general forum (Article 3) with additional special rules on jurisdiction for exceptional cases (Article 4 upto 7). 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 2000 (see Borras (1998) C 221/37).
As mentioned before, 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. 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(1) (a) and (b) are the only ones which 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 2003. 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.
The grounds of Article 3 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.
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:
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.
The court in which proceedings are pending on the basis of Article 3 [and Article 3a] BR II 2003 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 2003). 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).
Without prejudice to Article 3 [and Article 3a] BR II 2003, 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 2003). 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 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 BR II 2003 should be approached in combination with Article 7 BR II 2003. The limitation on the rules of jurisdiction in Article 6 opens the way to the residual jurisdiction provided for in Article 7. Article 6 BR II 2003 emphasises the exclusive nature of the grounds contained in the Article 3 to 5 BR II 2003 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 (Article 6 BR II 2003). Where the grounds under Article 3 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, with additional possibilities for counterclaims and conversions of legal separations into a divorce in accordance with Article 4 and Article 5 respectively. Therefore, in principle only the criteria listed in Article 3 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 2003).
But, in addition to the rule of Article 6, Article 7 BR II 2003 opens the possibility for Member States to accept jurisdiction on the basis of their own national law, but only in so far no court of any other Member State has jurisdiction on the basis of the Brussels II Regulation 2003. If a court of another Member State is allowed to admit the lawsuit or legal request, the rule of Article 6 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.
But where no court of a Member State has jurisdiction pursuant to Article 3, 4 and 5, jurisdiction can be determined, in each Member State, by the laws of that State (Article 7(1) BR II 2003). The criteria are laid down in the second paragraph of Article 7: 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(2) BR II 2003). Following the provision in Article 6 (exclusive nature of jurisdiction under Articles 3 to 5), Article 7 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.
Taking into account the grounds of jurisdiction laid down in Articles 3 to 5 of the Brussels II Regulation 2003, Article 7(1) BR II 2003 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(2) BR II 2003 must be examined in the following sense:
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).
The Brussels II Regulation 2003 will be amended in the near future, in the sense that a new provision will be added under number Article 3a BR II 2003 and that Article 7 will be changed entirely, whereas the current Article 6 will disappear.
Article 3a BR II 2003 introduces a limited possibility for the spouses to designate by common agreement the competent court (‘prorogation’) in a proceeding relating to divorce and legal separation. It corresponds to Article 12 BR II 2003, which allows the parties to agree on the competent court in matters of parental responsibility under certain conditions. ‘This enhanced party autonomy will improve legal certainty and predictability for the spouses. The current jurisdiction rules do not allow spouses to apply for divorce in a Member State of which only one of them is a national in the absence of another connecting factor. The new rule will in particular improve access to court for spouses of different nationalities by enabling them to designate by common agreement a court or the courts of a Member State of which one of them is a national. This possibility applies to spouses living in a Member State as well as spouses living in third States. Spouses who designate a competent court may also avail themselves of the possibility to choose the applicable law pursuant to Article 20a. [Explanatory Memorandum COM) (2006) final]. The possibility to choose the competent court does not apply to proceedings relating to marriage annulment other then through a divorce or legal separation. Certain formal requirements need to be respected to ensure that both spouses are aware of the consequences of their choice. If spouses want to make a choice of jurisdiction relating to divorce and legal separation, then their wish must be expressed in a written agreement, which has to be signed by both spouses, at the latest at the time the chosen court is seised (Article 3a(2) BR II 2003). Furthermore the spouses are not able to choose for the court of every random Member State. Certain conditions have to be met, to ensure that there’s a genuine connection between the involving spouses and the chosen Member State with jurisdiction (Article 3a(1) BR II 2003). The spouses may only agree that a court of a Member State are to have jurisdiction in a proceeding between them relating to divorce or legal separation, provided they have a substantial connection with that Member State by virtue of the fact that:
As soon as Article 3a will be effectively incorporated in the Brussels II Regulation 2003, the current Article 6 will be deleted, whereas Article 7 will change drastically. Article 6 states that the jurisdiction, as provided for in Articles 3, 4 and 5 BR II 2003, is in certain circumstances of an exclusive nature. Article 7 indicates that, provided no other Member State has jurisdiction in line with the Brussels II Regulation 2003, the court of a Member State can, if a number of conditions are met, acknowledge jurisdiction on the base of its national law. Under the current Brussels II Regulation there can be no prorogation of jurisdiction in matters of divorce or legal separation. A Member State either has jurisdiction on the basis of Article 6 and Article 7, 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 2003). This, however, will change as soon as the new Article 3a becomes effective. This provision introduces a limited possibility for the spouses to designate by common agreement the competent court (‘prorogation’) in a proceeding relating to divorce and legal separation. As mentioned before, the current Article 7 BR II 2003 refers to the national rules on international jurisdiction in situations where the spouses are not habitually resident in the territory of a Member State and do not have common nationality. However, the national rules are based on different criteria and do not always effectively ensure access to court for spouses although they may have a close connection with the Member State in question. This may lead to situations where no jurisdiction in the EU or in a third State has jurisdiction to deal with an application for divorce, legal separation or marriage annulment. It may also lead to practical difficulties to have the divorce recognised in a Member State since a decision issued in a third State is not recognised in a Member State pursuant to the Brussels II Regulation, but only pursuant to national rules or applicable international treaties. [Explanatory Memorandum COM) (2006) final]. That’s why new provisions are issued, that introduce a uniform and exhaustive rule on residual jurisdiction, and will replace the national rules on residual jurisdiction and will ensure access to court for spouses who live in a third States but retain strong links with a certain Member State of which they are nationals or in which they have resided for a certain period. The scope of this rule corresponds to the general rule of jurisdiction in Article 3 BR II 2003 and applies to divorce, legal separation and marriage annulment. The introduction of these new rules also means that the rule of Article 6 , which states that the Articles 3 to 5 are of an exclusive nature at determining if a Member State’s court has jurisdiction, has to be crossed out.
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