The applicant seeks a divorce. The parties were married in 2001 in Singapore and separated within the year. At the time of the wedding, the parties were habitually resident in Singapore, where it is impossible to divorce within the first three years of marriage. Mr. L. is a Belgian national habitually resident in Thailand. Mrs. Z. is a Chinese national, her habitual residence is unknown.
To examine its jurisdiction, the Court refers to the Brussels IIa Regulation. In the presence of a “European” defendant (who is a national of a Member State or is habitually resident in the territory of a Member State) the international jurisdiction of the courts is determined exclusively by the Brussels IIa Regulation. In the presence of a foreign, “non-European” defendant, the court may alternatively apply the rules of jurisdiction applicable in its own state.
Art. 17 Brussels IIa implies that the court of a Member State shall examine its jurisdiction of its own motion.
In the present case, Mrs. Z. does not have the nationality of one of the Member States and is not resident in a Member State either. The Court first examines its jurisdiction on the basis of the Brussels IIa Regulation. The Court finds that one of the criteria of Art. 3 of that Regulation are applicable.
Only then does the Court refer to the Belgian Code on Private International Law. Again, none of the connecting factors included in the general rule of jurisdiction over divorce proceedings (cf. Art. 42 of the Code) are present. However, the Belgian Code contains a “forum necessitatis” clause in Art. 11.
On the facts of the case, the Courts decides that the requirements of Art. 11 Belgian Code on Private International Law are fulfilled. The Belgian courts have jurisdiction.
SHORT CRITIQUE
Pursuant to arts. 6-7 Brussels IIa the Court correctly applies the Belgian PIL rules. Art. 11 Belgian PIL Code (Act of 16 July 2004) introduces the possibility of a "forum necessitatis" if two conditions are simultaneously fulfilled: the case must be closely connected to Belgium and it must be impossible or unreasonable to conduct proceedings abroad. In this case the court decides that these conditions are fulfilled, because the applicant was born in Belgium and lived there for 25 years (he has Belgian nationality). The requirement of "necessity" is also fulfilled because he provides an affidavit by Thai lawyer who states that it would be very difficult to apply Belgian or Chinese divorce law in Thailand.