Case number and/or case name
ITF20140416 Tribunal of Milano (BIIa, Maint Reg., Maint. Prot.)
Summary
In a proceeding for the legal separation of spouses, the issue of jurisdiction over status, parental responsibility and maintenance of the wife and children shall be assessed by the court on its own motion. Such assessment must be referred to the moment the claims were filed before the court. Therefore, facts and actions taken by the parties subsequently to the filing of the claims are irrelevant with a view to establishing jurisdiction.
Under Article 3(1)(b) of Regulation (EC) No 2201/2003, Italian courts have jurisdiction over the action for legal separation between an Italian and a Italian-Moroccan as both spouses are Italian nationals: the fact that the habitual residence of the spouses – to be identified in the place where they have intentionally and stably established the permanent or habitual centre of their interests – is situated in Switzerland is irrelevant because the different objective alternative criteria that are laid down at Article 3(1) are not hierarchically ranked.
Pursuant to Article 19(3) of the Regulation, the conflict of jurisdiction that arises as a result of the proceeding pending on the same object and between the same parties before a Swiss court shall be solved on the grounds of which proceeding was commenced first, i.e. in favour of the Italian court which, pursuant to Article 16, was seized before the Swiss court.
Under Article 8 of Regulation (EC) No 2201/2003, Italian courts do not have jurisdiction over the claim on parental responsibility over minors whose habitual residence is in Switzerland, nor does it apply the prorogation of jurisdiction pursuant Article 12 of the Regulation because the spouses have not expressed their acceptance of such jurisdiction.
Pursuant to Article 3(c) of Regulation (EC) No 4/2009, Italian courts have jurisdiction over the maintenance action filed by the wife, as such claim is ancillary to the action concerning status, i.e. the action for legal separation. Pursuant to Article 12 of said Regulation, the proceeding in Italy prevails as it was filed prior to the proceeding brought before the courts in Switzerland.
With respect to the claim for maintenance in favour of the children, Italian courts do not have jurisdiction because this claim is inherently connected to the one on parental responsibility and thus requires to be decided together. Accordingly, the criterion of the child’s habitual residence – laid down at Article 3(d) of Regulation (EC) No 4/2009 – shall prevail as it “absorbs” every other criterion.
Pursuant to Article 9(a) of Regulation (EU) No 1259/2010, Swiss law governs the legal separation of an Italian and a Italian-Moroccan citizen habitually residing in Switzerland.
Under Article 3 of the Hague Protocol of 23 November 2007, recalled by Article 15 of Regulation (EC) No 4/2009, the maintenance claim in favour of the wife is governed by Swiss law as the law of the State of the creditor’s habitual residence.
Pursuant to Article 20 of Regulation (EC) No 2201/2003, Italian courts do not have jurisdiction for the adoption of provisional measures in matters of parental responsibility when the minors are not present in Italy. Likewise, under Article 14 of Regulation (EC) No 4/2009 Italian courts do not have jurisdiction over the maintenance claim in favour of the children because the proceeding before the Swiss court was commenced first.