PIL instrument(s)

Case number and/or case name

S.-R. v. R. - Bruxelles, 18 février 2013

Details of the court

Belgium, Second Instance

Articles referred to by the court

Date of the judgement

17 February 2013

Appeal history

CJEU's case law cited by the court

Summary

(Decision by the Brussels Court of Appeal) The parties both have German nationality. They married in Rome in May 2002. They established their marital residence in Brussels, where Mr. R. worked for the European Commission. From 2008 to 2009 they resided in Singapore where Mr. R. worked on a project for the Commission. The parties separated in December 2009-January 2010. Mr. R. filed an application for divorce with the Amtsgericht of Schöneberg, Berlin in Germany on 17 January 2011. The divorce proceedings are still pending. On 4 April 2012, Mrs. S.-R. filed a claim for maintenance after divorce in the amount of 4,594 EUR. On 27 January 2012, Mrs. S.-R. brings summary proceedings before the President of the Court of First Instance of Brussels in order to obtain a provisional maintenance in the amount of 10,000 EUR before taxes per month. Mr. R. contested the jurisdiction of the Belgian courts, claiming the parties had reached an agreement on the jurisdiction of the German courts. The first judge agreed and dismissed the case. Mrs. S.-R. appealed. DECISION OF THE COURT First of all, the Brussels Court of Appeal reminds the parties that the Maintenance Regulation is applicable to their case. The parties themselves had argued that that the Brussels I Regulation (No. 44/2001) was still applicable, since Mr. R. had initiated the divorce proceedings on 17 January 2011, before the date of application of the Maintenance Regulation of 18 March 2011 (cf. Art. 76 Maintenance Regulation). Surprisingly, the first judge followed their argument. The Court of Appeal now states that since Mrs. S.-R. brought a writ of summons for the maintenance claim on 27 January 2012, after the date of application of the Maintenance Regulation. At that moment the proceedings were “instituted” within the meaning of Art. 75(1) Maintenance Regulation. The application of the Maintenance Regulation is mandatory. Nonetheless, the Maintenance Regulation provides the possibility to make a choice of court, on the conditions set out in Art. 4. Mr. R. maintains that the spouses agreed to bring their case before the courts of Berlin in Germany. The parties both have German nationality, so that the requirement of Art. 4(1)(b) is fulfilled. Mr. R. argues that their agreement is formed by the letters of the parties’ respective counsel d.d. 16 and 28 June 2010. Upon reading the letters, the Court of Appeal decides that there was a valid choice of court agreement between the parties conferring jurisdiction to the courts of Berlin. It is not necessary to examine the validity of this agreement under German law. The agreement is in writing, as required by Art. 4(2) Maintenance Regulation. Mrs. S.-R.’s objections are dismissed by the Court. Moreover, Mrs. S.-R.’s had initially brought her claim before the courts of Schöneberg on 3 November 2010. She later abandoned this procedure for reasons which are unknown to the Court. This was her own decision which should not allow her now to bring her claim before the Belgian courts. Before the German court where the divorce proceedings are still pending, she also entered a counterclaim for maintenance after divorce. The Court of Appeal considers it is in the interests of general procedural economy to pursue the claim before the same court.