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Divorce & Nullity EU

EU Regulations

The position among EU states is now governed by EU regulations.  It applies to foreign divorces granted after 1st March 2001 in the original 15 EU states.  After May 2004, it was extended to the 10 new EU accession states and states and the three states that later acceded.

The Regulation is part of the general  Brussels II Regulation on the recognition of judgments and order. It applies to legal proceedings and settlements concluded after 1st March 2005.

The Regulations provide for the procedure for application to recognise and enforce EU orders of divorce, legal separation and annulment.  The court may also rule on the recognition of the same if it arises as an incidental issue in other proceedings.

On 1 August 2022, Regulation 2019/1111 came into effect. It applies to legal proceedings that start after 1 August 2022 and agreements made after that date.

Brussels II 2003

An application for recognition was made to the Master of The High Court.  It was grounded on an affidavit exhibiting the judgment or a certified copy.  Where judgment was in default, proof of service is required.

If the Master grants an order, it will provide for the period in which an appeal may be made.  Notice of the order granting to leave to enforce the judgment must be served together with the order on the person affected by it.  The same broad procedures that apply to recognise the recognition of civil judgments apply.

The grounds of recognition of foreign divorces, legal separation, and annulments are relatively liberal.  The Regulation provides that it shall not be recognised if:

  • the recognition is manifestly contrary to the public policy of the state in which recognition is sought.
  • Where it is in default of appearance the respondent was not served with the document which instituted the proceedings in sufficient time to enable him defend the matter unless it is determined that the respondent has accepted the judgment unequivocally.
  • it is irreconcilable with  judgment given in proceedings between the same parties in which the recognition is sought or
  • it is irreconcilable with an earlier  judgment given in another state between the same parties, provided the earlier judgment fulfils the requirement for recognition.

Brussels IIa 2005

Regulation (EC) No 2201/2003 known as ‘The Brussels IIa Regulation’ applies to civil law cases involving more than one country that relate to:

  • divorce
  • legal separation
  • the annulment of a marriage
  • any aspect of parental responsibility (such as custody and access rights).

The regulation does not apply to cases concerning:

  • grounds for divorce or the law applicable in divorce cases
  • divorce-related issues such as maintenance
  • establishing and challenging paternity
  • judgments on adoption and the associated preparatory measures
  • annulling or revoking an adoption
  • a child’s first and last names
  • the independence of children from their parents or guardians
  • trusts and inheritance
  • measures taken in response to criminal acts committed by children.

Automatic Recognition

Under the regulation, any Member State must automatically recognise judgments given in another Member State on matrimonial and parental responsibility matters. Recognition can be refused if, for example:

  • recognition is clearly contrary to public policy
  • the defendant did not receive the document initiating proceedings in time to arrange legal defence (in cases where the judgment was given in the defendant’s absence)
  • recognition is incompatible with another judgment given between the same parties.

For judgments concerning parental responsibility, recognition can also be refused if:

  • the child was not given an opportunity to be heard
  • on the request of a person claiming that the judgment infringes his or her parental responsibility, the judgment was issued without this person having been given an opportunity to be heard.

2019 Restatement

In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:

in whose territory:

(i)

the spouses are habitually resident,

(ii)

the spouses were last habitually resident, insofar as one of them still resides there,

(iii)

the respondent is habitually resident,

(iv)

in the event of a joint application, either of the spouses is habitually resident,

(v)

the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

(vi)

the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is a national of the Member State in question; or

of the nationality of both spouses.

 

The court before which proceedings are pending above shall also have jurisdiction to examine a counterclaim, insofar as that counterclaim falls within the scope of the Regulation.

A court of a Member State that has given a decision granting a legal separation shall also have jurisdiction to convert that legal separation to a divorce if the law of that Member State so provides. Where no court of a Member State has jurisdiction pursuant above, jurisdiction shall be determined, in each Member State, by the laws of that State.

A spouse who is habitually resident in the territory of a Member State or a national of a Member State may be sued in another Member State only in accordance with the Regulation.

As against a respondent who is not habitually resident in and is not a national of a Member State, 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.

Recognition

 A decision given in a Member State shall be recognised in the other Member States without any special procedure being required.    In particular, no special procedure shall be required for updating the civil-status records of a Member State on the basis of a decision 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.

Any interested party may, in accordance with the procedures provided, apply for a decision that there are no grounds for refusal of recognition referred to.

Where the recognition of a decision is raised as an incidental question before a court of a Member State, that court may determine that issue.

Documents to be produced for recognition

A party who wishes to invoke in a Member State a decision given in another Member State shall produce the following:

(a)

a copy of the decision which satisfies the conditions necessary to establish its authenticity; and

(b)

the appropriate certificate issued pursuant to Article 36.

The court or competent authority before which a decision given in another Member State is invoked may, where necessary, require the party invoking it to provide a translation or transliteration, in accordance with Article 91, of the translatable content of the free text fields of the certificate referred to.

The court or competent authority before which a decision given in another Member State is invoked may require the party to provide a translation or transliteration, in accordance with Article 91, of the decision in addition to a translation or transliteration of the translatable content of the free text fields of the certificate if it is unable to proceed without such a translation or transliteration.

If the documents specified are not produced, the court or competent authority may specify a time for its production, accept equivalent documents, or, if it considers that it has sufficient information before it, dispense with its production.   If the court or competent authority so requires, a translation or transliteration,, of such equivalent documents shall be produced.

Stay of proceedings

The court before which a decision given in another Member State is invoked may stay its proceedings, in whole or in part, where:

(a)

an ordinary appeal against that decision has been lodged in the Member State of origin; or

(b)

an application has been submitted for a decision that there are no grounds for refusal of recognition referred to in Articles 38 and 39 or for a decision that the recognition is to be refused on the basis of one of those grounds.

 

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