EUPillar H. v. B. - Civ. Bruxelles, 19 March 2013

Summary

(Decision by the Brussels Court of First Instance, Civil chamber) Mr. H. seeks to be relieved of the payment of alimony after 3 January 2008, or, in the alternative, to decrease the amount he owes each month. Mrs. B. has the German nationality, both at the time of the marriage and of the divorce. She resides in Luxembourg since 18 October 1996. Pursuant to Art. 5(2) Brussels I Regulation, the courts of Luxembourg have jurisdiction over this matter. However, Art. 24 Brussels I Regulation provides that the court of a Member State before which a defendant enters an appearance shall have jurisdiction, except where appearance was entered to contest the jurisdiction (or where another court has exclusive jurisdiction by virtue of Art. 22). Mrs. B. contested the jurisdiction of the Justice of the Peace of Uccle in her first conclusion before that judge, but did not repeat her objections and later recognised the jurisdiction of the Belgian courts. Pursuant to Art. 15 of Regulation 4/2009, “the law applicable to maintenance obligations shall be determined in accordance with the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations (hereinafter referred to as the 2007 Hague Protocol) in the Member States bound by that instrument.” The 2007 Hague Protocol entered into force in Belgium on 18 June 2011. Therefore, the Court distinguishes between the period before and after 18 June 2011. For the period before 18 June 2011, the Court applies the Belgian Code on Private Internal Law. The Court determines that Belgian law is applicable to all aspects of the case. Under the 2007 Hague Protocol, the general rule is that maintenance obligations shall be governed by the law of the State of the habitual residence of the creditor (cf. Art. 3) – in this case, Luxembourg law. However, Art. 5 of the Protocol provides that “in the case of a maintenance obligation between spouses, ex-spouses or parties to a marriage which has been annulled, Article 3 shall not apply if one of the parties objects and the law of another State, in particular the State of their last common habitual residence, has a closer connection with the marriage. In such a case the law of that other State shall apply.” In the case at hand, Mr. H. contests the application of Luxembourg law. The Court decides that Belgian law has a closer connection to the case, since Mrs. B. brought her initial demand for maintenance after the divorce before the Justice of the Peace of Uccle, Belgium, on the basis of Belgian law, while in fact she was already residing in Luxembourg. SHORT CRITIQUE The Court correctly applies Art. 24 Brussels I Regulation. However, the Court errs where the temporal application of Regulation 4/2009 and the 2007 Hague Protocol is concerned. The claim for maintenance was initiated on 3 January 2008. Therefore, neither Regulation 4/2009 nor the 2007 Hague Protocol are applicable in this case. The Court should have applied the Belgian Code on Private Internal Law to every aspect of the claim.