PIL instrument(s)

Case number and/or case name

X v Y - AR 10/754/A - Rb. Hasselt, 27 December 2011

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

26 December 2011

Appeal history

CJEU's case law cited by the court

Summary

The spouses have Dutch nationality and are married under the system of separation of property. The plaintiff initiates divorce proceedings. The defendant files a counterclaim for maintenance after the divorce. (i) The claim for divorce The last marital residence was in Belgium, also the place where the plaintiff was still resident at the time of the introduction of the divorce proceedings. According to Art.3(1)(a), first indent, of the Brussels IIa Regulation, the Belgian courts have jurisdiction over the divorce proceedings. Belgian law is applicable pursuant to Art. 55(1) of the Belgian Code of Private International Law. (ii) The claim for liquidation and division of the marital property regime This aspect of the case is settled according to Belgian national PIL rules. The courts of Hasselt have jurisdiction, but the applicable law is Dutch law. (iii) The counterclaim for maintenance The Court has jurisdiction to hear the counterclaim for maintenance on the basis of Art. 3 of the Maintenance Regulation. Concerning the applicable law, Regulation 4/2009 – which is immediately applicable to the pending claims – refers, in its Art. 15, to The Hague Protocol of 23 November 2007. By virtue of this Protocol maintenance obligations shall be governed by the law of the State of the habitual residence of the creditor, unless 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 case, the law of that other State shall apply (cf. Arts. 3 and 5 of the 2007 Hague Protocol). This is not the case here, since the spouses had been living in Belgium for a while, even before their marriage. Therefore, Belgian law is applicable. SHORT CRITIQUE Concerning the jurisdiction over the claim for divorce, the Court says it applies Art. 3(1)(a), first indent of the Brussels IIa Regulation, while in fact in applies Art. 3(1)(a), second indent. Concerning the claim for liquidation and division of the marital property regime, the Brussels IIa Regulation clarifies in its Recital 8 that the Regulation should apply only to the dissolution of matrimonial ties and should not deal with issues such as the property consequences of the marriage or any other ancillary measures. The Court was therefore right to apply Belgian law, even if it does not elaborate further on the reason why European PIL rules are not applicable.