In a default judgment of 5 March 2012, the Brussels Court of First Instance had asked the applicant to provide evidence of the habitual residence of the parties. At the hearing of 23 April 2013 confirms her own place of habitual residence, but explains that she does not know where the defendant resides at the moment.
The applicant is Belgian and is habitually resident in France. The defendant is American and probably resides in Alabama. The parties were married in Belgium on 3 August 2010. Their marital residence was in Belgium. The applicant seeks a divorce. Nor France, nor the state of Alabama recognise same-sex marriage, and therefore the divorce can only be obtained in Belgium.
The Court examines its jurisdiction of its own motion. The Court determines that none of the grounds of jurisdiction of Art. 3(1) Brussels IIa Regulation are applicable, and therefore turns to the provisions of the Belgian Code on Private International Law. Since its general rule does not offer a ground of jurisdiction either, the applicant relies on Art. 11 of the Code, which provides a “forum of necessity” for cases which present a close connection to Belgium where the parties cannot reasonably be expected to bring the case before the courts of another State.
The Court agrees that there are close connecting links with Belgium, and that divorce proceedings in France or the US are impossible.
The parties have been separated at least since 2 August 2011, the Court therefore grants the divorce on the basis of Belgian law.
SHORT CRITIQUE
This is an example of a case where the Belgian courts use the "forum necessitatis" provision of the Belgian Code of Private International Law (Act of 16 June 2004) to establish jurisdiction, even though the provisions of the Brussels IIa Regulation do not offer a jurisdictional ground.