Resolving Matrimonial and Parental Responsibility disputes in Cross-Border cases

By: N. Pirilides & Associates LLC

Determining Jurisdiction in EU Divorce and Custody Cases

Scope of the Regulation

The Council Regulation (EU) 2019/1111 also known as Brussels IIa (the “Brussels IIa”) aims to help international couples (a marriage between two people from different countries or nationalities) who have their habitual residence in a Member State of the European Union (the “EU”) or are nationals of a Member State of the EU, to resolve disputes concerning divorce and custody of their children, where more than one country is involved.

According to Article 1 of the Brussels IIa, the Regulation applies in civil matters of:

1. Divorce, legal separation or marriage annulment, and
2. the attribution, exercise, delegation, restriction or termination of parental responsibility.

According to Article 1(2) of the Brussels IIa, the matters referred to in point (b) as mentioned above may include:

1. Rights of custody and rights of access;
2. Guardianship, curatorship and seminal institutions;
3. The designation and functions of any person or body having charge of the person or property of a child, or representing or assisting a child;
4. The placement of a child in institutional or foster care;
5. Measures for the protection of the child relation to the administration, conservations or disposal of the property of a child.

Jurisdiction in matrimonial disputes

In matters relating to divorce, legal separation or marriage annulment, jurisdiction will lie with the Courts of the Member State in whose territory the spouses are habitually resident, or the spouses were last habitually resident, insofar as one of them still resides there or the defendant has its habitual residence there, or in the event of a joint application, either of the spouses is habitually resident, or the plaintiff has its habitual residence there if he or she resided there for at least a year immediately preceding the time the application was made, or the plaintiff has its habitual residence there 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 (Article 3(a) of the Brussels IIa).

In relation to the above matters, jurisdiction shall also lie with the Courts of the Member State of the nationality of both spouses (Article 3(b) of the Brussels IIa).

It follows from the above that the habitual residence of one or both spouses in the territory of a Member State is the basic criterion for the Court to assume jurisdiction in matrimonial matters. However, the Regulation also sets as an alternative criterion the possession of the nationality of a Member State of the EU whose courts may assume jurisdiction.

Jurisdiction in parental responsibility disputes

According to Article 7 of the Brussels IIa, the Courts of a Member State shall have jurisdiction in matters of parental responsibility over a child, who has its habitual residence in that Member State at the time the Court is seized.

Conclusion

In light of the above, it is demonstrated that the habitual residence of both spouses or one of them in matrimonial matters and the habitual residence of the child in parental responsibility matters, plays a central role in the assumption of jurisdiction by a Court of a Member State of the EU, as it is the main criterion, which the Court shall examine in order to be able to assume jurisdiction.