EUPillar B v A - Civ. (réf.) Arlon, 2 October 2008

Summary

During summary proceedings, the President of the Court of First Instance of Arlon had determined that the Belgian courts have jurisdiction to take urgent and provisional measures relating to parental authority, custody and, indirectly, the schooling of two young girls who live with their father in the district of the court seised, on the basis of both Art. 10 Belgian Code on Private International Law and Art. 20 Brussels IIa. The defendant fails to enter an appearance, which means that the Court has to examine all aspects of its international jurisdiction of its own motion. The defendant separately commenced divorce proceedings in France, but no decision has been handed down in that case yet. The spouses were married in Arlon, they have Belgian nationality and the last marital residence was established in France. The defendant habitually resides in France. Pursuant to the Brussels IIa Regulation, jurisdiction shall lie with the courts of the Member State of the nationality of both spouses in matters relating to divorce (cf. Art. 3(1)(b)) as well as relating to provisional measures depending on the divorce (cf. Art. 12). The jurisdictional grounds of Art. 3 are put on the same level. The Belgian courts have jurisdiction. On the internal level, the courts of the place of the last marital residence or of the residence of the defendant are competent (cf. Art. 628 § 1 Belgian Judicial Code). None of these factors establishes a connection with Belgium. Therefore one has to transpose the provisions which determine the international jurisdiction and apply them to the territorial jurisdiction. The courts of Brussels are competent (cf. Art. 13(2) in fine Belgian Code on Private International Law). However, where urgent and provisional measures are concerned, Art. 10 Belgian Code on Private International Law applies. A similar provision is Art. 20 Brussels IIa. In the case at hand the measures sought relate to the parental authority, custody and schooling of two young girls (16 and 13 years old) who live with their father in the judicial district of Arlon. The applicant’s claim is admissible and well-founded. Nevertheless, these measures will cease when the foreign court which has jurisdiction as to the substance of the case (i.e. the tribunal de Grande Instance d’Aix-en-Provence which as seised on 21 April 2008, before the Belgian court) takes the appropriate measures. The President of the Court temporarily grants joint parental authority over the children and establishes the custody of the children with the father. Short critique It is unclear why the court decides to apply both Brussels IIa and the Belgian Code of Private International Law.