Family EU

Brussels II

The Brussels II Regulation provides the general jurisdiction of courts for the purpose of recognition of judgments and orders within the EU.  Jurisdiction lies with the courts of the  member state

• in whose territories the spouse is habitually resident or
• where the spouses were last habitually  insofar as one of them still habitually resides there or
• the respondent is habitually resident or
• in the event of a joint application, either of the spouses are 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 there for at least six months immediately before the application is made and is a national of the member state or in the case of Ireland or United Kingdom, has his domicile there.

Jurisdiction will also be with the state of nationality of both spouses or, in the case of the United Kingdom and Ireland, their domicile.

Each of the above is an alternative.   There is no order of precedence.  There is overlap.

IF habitual residence applies on one ground, it is not necessary to apply on another ground. The purpose of the ground is to make for a principle of genuine connections between the persons and the state.

Habitual Residence

Habitual residence is not defined.  It is used in other places in EU legislation. A degree of continuity of residence is required.  It must be more than transient or casual.

Once established, it need not be broken by temporary absence. A person may be habitually resident, notwithstanding that he is absent from the country for substantial periods each year.

Physical presence is required as a basis for habitual residence.  A mere token presence is not sufficient.  It must be for an appreciable part of the relevant years.

Under the Brussels II Regulation, the spouse who is habitually resident in the state or as a national of the estate, or in Ireland or the UK, a domiciliary may be sued in another state only in accordance with the regulation.

Divorce & Matrimonial Judgments

The Brussels II Regulation provides for almost automatic recognition of matrimonial judgments. This  European Union Regulation largely replaces the traditional jurisdiction rules within its field of application.

Under the Regulation, habitual residence is the principal test.  Residence for less than a year will suffice in some cases.  The residence of one party will be recognised, provided it is the place where the spouses were last habitually resident.

If the tests under the Regulation are not satisfied, a court may assume jurisdiction under the traditional rules.  The traditional rules may not vary the exclusive jurisdiction under the Brussels II Regulation.

Where Mandatory

In some cases, the Regulation must be applied.  This is the case when the respondent is habitually resident or a national of, or in the case of, Ireland or the UK domiciled in a member state.

In this case, the respondent may be sued in another state only in accordance with the Regulation.  If the court in other state has jurisdiction under the Regulation, the home court may not exercise jurisdiction under traditional rules.

Issues of interpretation may arise where parties are connected with more than one member state.

Under the Regulations, the home court may not stay proceedings on the grounds that the courts of another state are more appropriate to resolve the dispute. An injunction may not be issued to restrain parties proceeding in another court.

Staying

Staying the proceedings is only permitted

• if the respondent is habitually elsewhere and does not  enter  an appearance
• if it is shown the respondent has not been able to receive the document in sufficient time to arrange a defence

Where proceedings relating to divorce legal separation or annulment between the parties have been brought before courts of different member states, then the court secondly seised,  shall proceedings of its own motion, until such time as the jurisdiction of the first court is established or not.

Recognition of decrees of divorce, legal separation and annulment are governed by Brussels II Regulation or traditional common law rules.

Rome III and Brussels II

The European Regulation known as Rome III provides for cooperation between the European Union States in family law matters. This followed from Brussels II, which had extended judicial cooperation in civil matters into the family law area.

It deals with the recognition and enforcement of matrimonial judgments and matters of parental responsibility. Brussels II does not apply to maintenance, which is the subject of a separate provision.

Ireland and the UK are subject to Brussels bis II. Although Brussels bis II does not seek to harmonise family law in any way, it does seek to avoid duplication of legal proceedings in Member States. The broad principle is that of first-come, first-served.

It provides a basis on which a party may claim jurisdiction in divorce, separation and annulment matters. The State where proceedings are first issued obtains precedence.

Habitual Residence Meaning

In relation to divorce, legal separation and marriage annulment, jurisdiction lies with the courts of the Member State in whose territory

• the spouses are habitually resident or were last habitually resident, insofar as one of them still resides there or the respondent is habitually resident;
• in the event of a joint application, both spouses are habitually resident;

The applicant is habitually resident if

• he resided there for at least a year before the application was made;
• the applicant is habitually resident if for at least six months immediately before the application was made, he resided there and  is either a national of the Member State in question; or in the case of the United Kingdom and Ireland, domiciled there.

Staying & Alternatives

Each of the above is an alternative ground. Jurisdiction lies with the courts of the nationality or, in the case of the United Kingdom and Ireland, the courts of domicile.

Where proceedings are brought in courts of more than one State relating to divorce, legal separation, or annulment between the same parties, the court second seised shall, of its own motion, stay the proceedings until such time as the jurisdiction of the first court is established.

The above grounds are not in order of priority and effectively lead to a choice of jurisdiction in some cases. Primacy is given to the court in which proceedings are issued, notwithstanding that it may not be the most appropriate or convenient court. The provision has been criticised as encouraging forum shopping.

This is particularly so given the lack of harmonisation in matrimonial areas. A party may be incentivised to issue proceedings in a jurisdiction whose laws suit his particular requirements in the case.