EUPillar B.H. v. K.M. - 05/1410/C - Civ. (réf.) Bruxelles, 25 January 2007

Summary

The parties have Moroccan nationality. They are both resident in Belgium. The wife requests provisional measures in divorce proceedings, namely the permission to reside separately. She also requests exclusive parental authority and maintenance for herself and for the child. The Court considers its jurisdiction over the request for separate residences. This matter does not fall within the scope of Regulation 44/2001 (see Art. 1), nor of Regulation 2201/2003 (cf. Recital 8) and the Court examines its jurisdiction on the basis of Art. 42 of the Belgian Code of Private International Law. Concerning parental responsibility and custody, the Court has jurisdiction based on Art. 8 Brussels IIbis, because the child’s habitual residence is in Belgium. Concerning maintenance, the Court also finds that this matter falls outside the scope of Brussels IIbis (cf. Art. 1(3)(e)). The Court therefore applies Art. 5(2) of Regulation 44/2001 and finds that it has jurisdiction. Short critique The court correctly determines its jurisdiction over each aspect of the case separately. This decision is in line with other Belgian case law which considers the authorisation given to spouses to reside separately to be part of ancillary proceedings which do not fall within the scope of Brussels IIa.