EUPillar S.G. v C.T. - 2008/KR/157 and 2009/5147

Summary

The spouses have Belgian nationality. They have two children, who were born in Belgium. The family lived in Belgium until 1998. Both parents and the children then moved to the Democratic Republic of Congo. The parties separated in 2005. The mother initiated divorce proceedings in Belgium on 25 April 2006. On 11 September 2007, she filed an application for provisional measures on the basis of Art. 1280 Belgian Judicial Code, because she was planning to come back to Belgium in September 2008 and she sought sole custody of the children for that reason. The father wanted alternate custody, or, if the mother were to go back to Belgium, sole custody of the children. The court in first instance granted primary custody to the mother, but decided also that the children would spend every school holiday with the father. The father lodged an appeal against this decision. The Court of Appeal examines its jurisdiction as required by Art. 17 Brussels IIbis Regulation. In this case, Art. 12(1) Brussels IIbis is applicable. Even though both spouses have their habitual residence in Congo, they both have Belgian nationality. Therefore the court has jurisdiction over the divorce on the basis of Art. 3(1)(b) Brussels IIbis. The spouses both have parental responsibility in relation to the child. They have both accepted the jurisdiction of the Belgian courts in an unequivocal manner since at no point have they raised objections as to the jurisdiction. Finally, the Court refers to Art. 12(4) which states that the jurisdiction is presumed to be in the best interests of the child if the third State concerned (Congo in this case) is not party to the 1996 Hague Child Protection Convention. Short critique The Court correctly applies the Brussels IIbis Regulation.