EUPillar R.V. v. D.M. - Civ. Liège, 12 March 2009

Summary

The spouses were married in Liège, Belgium in 2001. They have two children together. In 2007, the couple went to live in Spain with the children. During a stay in Belgium of the husband with the children, the husband, who went back to Spain on his own, caught his wife in adultery and then decided to stay in Belgium to prevent his wife from seeing the children again. On 30 June 2008, the husband seizes the Justice of the Peace of Liège – averring that the matrimonial home is in Liège – to obtain urgent and provisional measures. On 10 July 2008, the interim relief judge of Liège ordered the immediate return of the children to Spain at the domicile of their mother, considering that their habitual residence is in Spain and that Mr R.V. is guilty of wrongful retention of the children. The children returned to Spain on 12 July 2008. The Justice of the Peace confirmed that it has jurisdiction on the basis of Art 20 Brussels IIbis and Art 10 of the Code of Private International Law, but decided that the claim of the father was unfounded. On 28 August 2008, Mr R.V. lodged an appeal against this decision. On 17 December 2008, Mrs D.M. launched divorce proceedings in Spain, which were postponed indefinitely. 1. The Court decides first of all that there is no risk of irreconcilable decisions. The divorce proceedings in Spain and the proceedings for provisional measures in Belgium do not have the same purpose and object. Their consequences will succeed one another. The procedure in Belgium concerns provisional measures during a temporary separation, whereas the proceedings in Spain relate to the permanent divorce of the parties. 2. For the application of Art 20, three conditions have to be fulfilled: provisional character of the measures; urgency; territoriality. Mr R. seeks to obtain joint parental authority over his children and a secondary right of custody. He does not contest that the habitual residence of the children is in Spain, where they live since November 2007 and attend school. None of the exceptions of Arts. 9, 10, 12 or 13 allow the Court to establish jurisdiction. The Court examines whether the requirements of Art 20 Brussels IIa are fulfilled: The decision of the Court shall be provisional, since divorce proceedings are pending in Spain, where the final decisions regarding parental authority after the divorce will be made. Mr R. never brought proceedings before the competent Spanish court even though the conflict has been going on since at least June 2008. Mr R. voluntarily maintained the situation in a legal void and should bear the consequences. There needs to be a real connecting link between the measures sought and the territorial jurisdiction of the court seised. At the moment the court was seised, the children were present on Belgian territory, but this presence was purely temporary since it was the consequence of an illegal act of non-return of the children within the meaning of the Hague Convention. The residence of the applicant in Belgium is not sufficient to establish such a real connecting link. 3. International jurisdiction of the Court over the contribution to the maintenance of the children In the present case, the maintenance creditor (the wife) is habitually resident in Spain. Therefore, the Courts of Belgium do not have jurisdiction. The Court cannot base its jurisdiction on Art 31 Brussels I either, since there should be a real connecting link between the subject matter of the measure sought and the territorial jurisdiction, which isn’t the case here. 4. International jurisdiction of the Court over the setting of the residences of the spouses Art 1 Brussels I excludes from its scope all matters relating to the status of natural persons and is therefore not applicable to this case. Brussels IIa is not applicable either since it covers divorce, legal separation or marriage annulment. Critique: the Court correctly concludes that it lacks jurisdiction over all aspects of the case.