EUPillar B. v C. - Bruxelles, 11 September 2008

Summary

The parties both have Italian nationality and married in Italy in 1992. They have two children. Mr. C. also has a child from an extra-marital relationship. At the end of the 1990s the parties moved to Belgium, where they currently reside and work. In May 2006, Mr C. left the marital home to rent an apartment in Brussels. On 24 January 2007, Mrs B. submitted an application for judicial separation to the Civil court of Rome. The parties appeared in person before the court in Rome on 5 July 2007. By its decision of 20 August 2007, the court in Rome authorised the parties to live separately, granted joint parental authority, gave primary custody to the mother with rights of access for the father, fixed a monthly maintenance payment of 500 EUR for both children, and set a date for the next hearing. On 20 March 2007, Mr C. had a submitted an application for urgent and provisional measures before the Justice of the Peace of Woluwe-Saint-Pierre in Belgium. The Justice of the Peace applied Art. 19 Brussels IIa and decided to stay the proceedings. Mr C. served Mrs B. with a writ of summons on 28 September 2007 for divorce proceedings based on Art. 229 § 3 Belgian Civil Code and a request for provisional measures. The first judge decided that Art. 19 Brussels IIa did not apply in this case and withheld its jurisdiction. The rest of the case would be dealt with at a later hearing. The appeal is limited to the issue of jurisdiction. DECISION OF THE COURT Brussels IIa is applicable to the attribution, exercise, delegation, restriction or termination of parental responsibility. Therefore it is applicable to Mr. C.’s requests concerning the exercise of parental authority and custody of the children. Brussels I is applicable to maintenance obligations (cf. Art. 5(2)). Since the parties and the children have resided in Belgium uninterruptedly since the end of the 1990s, the Belgian courts have jurisdiction pursuant to Art 8(1) Brussels IIa. However, Mrs B. refers to Art. 19(2) Brussels IIa, which stipulates that where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. The first judge had decided that the application made by Mrs B. before the Civil court of Rome on 24 January 2007, and the proceedings instituted by Mr C. on 28 September 2007, do not have the same cause of action, since the first is concerned with an application for judicial separation, whereas the latter relates to an application for divorce. The Court of Appeal does not follow the reasoning of the first judge. The cause of action of a claim is the legal basis underpinning this claim. In the case at hand, the cause of action of the claims of both parties is the fact that the spouses share parental authority over their children but disagree on the exercise of this authority in terms of custody and rights of access. It is irrelevant that these claims were put before the Italian judge during “legal separation” proceedings and before the Belgian judge in “divorce” proceedings. It should be remembered that Brussels IIa aims to prevent simultaneous proceedings which could lead to irreconcilable decisions. In this case, there is a real risk of irreconcilable decisions. The Court of Appeal decides to stay the proceedings in accordance with Art. 19(2) Brussels IIa Regulation. Furthermore, there is no need to apply Art. 20 since the Italian judge already took provisional measures. The same reasoning applies to the claim for maintenance (cf. Art. 27 Brussels I). Short critique: the court correctly interprets art. 19 Brussels IIa/art. 27 Brussels I.