PIL instrument(s)

Case number and/or case name

Mrs. D.S.M.M. v. Mr. L.D.S.A. - 06/1904/C - Civ. (réf.) Bruxelles, 31 January 2007

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

30 January 2007

Appeal history

CJEU's case law cited by the court

Summary

The case is about a divorce, where the parents lodged claims relating to parental responsibility, the right to maintain separate residences and maintenance. The parents are both Portuguese, but they have their habitual residence in Belgium. In the first claim about separate residences, the President of the Court finds that Brussels IIbis does not regulate the matter (cf. recital 8, the Regulation does not deal with property consequences of the marriage or any other consequences) and examines its jurisdiction according to Art. 42 of the Belgian Code of Private International Law. The second claim is about parental responsibility. This matter is governed by the Brussels IIbis Regulation, according to its Art. 1. The Court accepts its jurisdiction, based on Art. 8 of the Regulation, since the child’s habitual residence is in Belgium. Finally, as regards the maintenance claim, the President of the Court finds that the matter clearly does not fall within the scope of Brussels IIbis, since it is expressly excluded from its scope (cf. Art. 1(3)(e) and recital 11). Pursuant to Arts. 73 and 74 Belgian Code of Private International Law, the Belgian courts have jurisdiction and Belgian law is applicable. Short critique The Court correctly looks at each claim separately to determine its jurisdiction to hear that claim. The court decides that the claim to maintain separate residences during divorce proceedings does not fall within the scope of Brussels IIa. This is in line with other Belgian case law.