EUPillar S v D - Brussel, 25 June 2013

Summary

The parties have two children. In 2011, Mr S. obtained two court decisions in Saudi Arabia, by way of unilateral application, one pronouncing the divorce between the parties and the other granting him parental responsibility over the children. Mrs D. was notified of these decisions at her address in Belgium in January 2012. On 30 March 2012 she brought divorce proceedings before the Belgian courts. The Court of Appeal considers that every court – including the first judge who was presiding over summary proceedings – must examine its jurisdiction of its own motion, pursuant to Art 17 Brussels IIa. 1. Provisional measures The Court interprets the notion of “habitual residence” within the meaning of Art 3 Brussels IIa and notes that the concept must be given an autonomous interpretation. The Court of Appeal refers to a definition given by the ECJ, “the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence”. The Court of Appeal decides that the defendant is habitually resident in Belgium, on the basis of the following facts: She was enrolled in the national population register in 2001 and changed her domicile within Belgium to Asse in 2012; She worked for the WHO in Fiji from September 2009 until June 2011; In July she returned to Brussels; She worked as a doctor for an association in Belgium from December 2011 until June 2012; She signed a lease for her primary residence in Belgium in December 2011; She made payments and purchases in Belgium with her credit card in the period preceding the divorce proceedings. The defendant travelled to India and Amsterdam, but these temporary stays do not alter her habitual residence. Neither did the defendant have an alternative habitual residence during this period. The Belgian courts have jurisdiction as to the substance of the matter, and according to the Court of Appeal it is a general principle of private international law that those courts also have jurisdiction to take provisional and protective measures – a principle that is confirmed by Art 20 Brussels IIa. 2. Parental responsibility The parties also asked for measures with regard to their common children. These measures do not have a provisional character and therefore the Court examines its jurisdiction as to this aspect of the case separately. At the moment when the divorce proceedings were instituted, the children were not habitually resident in a Member State of the European Union. Art 12(1) Brussels IIa is not applicable in this case since the appellant rejects the jurisdiction of the Court. Finally, the Court refers to Art 14 Brussels IIa. The Belgian Courts have jurisdiction pursuant to Arts 32 and 33 of the Belgian Code on Private International Law. 3. Maintenance Lastly, the Court must also examine its jurisdiction with regard to the maintenance claim. Here, the Maintenance Regulation 4/2009 is applicable, more precisely Art 3(d). Here, too, the Belgian Courts have jurisdiction. The law applicable to maintenance obligations is governed by the Maintenance Regulation which refers, in its Art 15, to the 2007 Hague Protocol. This Protocol applies even if the applicable law is that of a non-Contracting State (cf. Art 2). The claim initiated by Mr S., appellant, against the defendant is governed by the lex fori pursuant to Art 4(3) – in this case, Belgian law. The claim for maintenance of the defendant against the appellant is also governed by Belgian law, pursuant to Art 3(1). Short critique The definition given by the ECJ of the concept of “habitual residence” comes from the Explanatory Report on Brussels II prepared by Dr Alegría Borrás (16th July 1998 – Official Journal 1998 C221, P. 0027-0064, no. 32), even though the Court of Appeal directly refers to the ECJ (case C-523/07 of 2 April 2009, consideration 34).