EUPillar S v J - Civ. (réf.) Bruxelles, 21 November 2007

Summary

The current judgment is concerned with provisional measures during the divorce proceedings which were initiated by Mr. S. Mr. S. has dual French-Polish nationality whereas Mrs. J. has French nationality. They have two children. The parties established themselves in Belgium in 1995. They separated in June 2005. At the end of 2006, Mrs. J. was moved to Germany by her employer. The parties now need to agree on a new calendar for the custody of the children during the summer holidays. Mrs. J. contests the jurisdiction of the Belgian courts. Mr. S. argues that the parties already enacted an agreement at the hearing of 27 June 2007 and that no mention of jurisdiction was made. Since Mrs. J. failed to contest the jurisdiction in limine litis, her argument cannot be withheld at this stage. The Court disagrees: pursuant to Art. 17 Brussels IIa, where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction. This means that the jurisdictional rules are a matter of public policy and that objections to the jurisdiction must not necessarily be raised on the first occasion by the parties. (i) Parental responsibility and custody rights Pursuant to Art. 8(1) Brussels IIa, the courts of Germany, where the children are habitually resident, have jurisdiction. Mr. S. relies on the exceptions to this rule in Arts. 10 and 12. He argues that the removal of the children was wrongful. By mutual agreement the parties entrusted Mrs. J. with primary custody of the children in July 2006. When she notified Mr. S. that she would move to Germany with the children for professional reasons, the latter did not object to the move. On the contrary, he entered into a new agreement with Mrs. J. in October 2006. Mr. S. alleges that he filed a complaint, but Mrs. J. never received the complaint and the document submitted to the court is not dated. If Mr. S. really wanted to object to the removal of his children he could have done so through the procedure of Art. 11 Brussels IIa, which is quick and efficient. The conditions of Art. 12 Brussels IIa are not fulfilled in the present case. Mrs. J. did not accept in an express and unequivocal way the jurisdiction of the court of the divorce proceedings. The agreement made by the parties on 27 June 2007 related only to the custody of the children during the summer holidays and fits into the framework of Art. 20 Brussels IIa relating to provisional measures. Therefore, the German courts have jurisdiction over the issues of parental responsibility and rights of custody. Nor do the Belgian courts have jurisdiction on the basis of Art. 20 Brussels IIa. Mr. S.’s requests do not relate to the urgent and provisional matter of the accommodation of the children during the summer holidays. He wants to obtain an definitive decision on all aspects of the custody of the children. (ii) Separate residences of the spouses and provisional allocation of furniture These matters do not fall within the scope of any European regulation. The Court applies the relevant articles of the Belgian Code on Private International Law. The Belgian courts have jurisdiction to enact the agreement reached by the parties on these matters. (iii) Maintenance Pursuant to Art. 5(2) Brussels I, the German courts have jurisdiction over the request for maintenance contributions. The court correctly applies art. 5(2) Brussels I (now replaced by the Maintenance regulation).