(Decision by the Tribunal de première instance - Court of First Instance of Brussels)
The applicant seeks a divorce on the basis of Art. 94 et seq. of the Moroccan Family Law Code. The parties have Moroccan nationality, are habitually resident in Morocco and never had a marital residence in Belgium. The applicant briefly worked in Belgium until 1975 and has one child from a previous marriage.
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 Regulation implies that the court of a Member State shall examine its jurisdiction of its own motion.
In the present case, Mrs. A. 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 not fulfilled. The Belgian Courts lack 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 not fulfilled. The applicant has only a very tenuous link with Belgium (where he briefly in 1975 and still receives a small pension). That pension is probably the reason the applicant wants to obtain a divorce in Belgium, so he can claim a higher amount. However, there is no necessity, because there a divorce by "chiqaq" is available in Morocco. Such a divorce can be recognised by the Belgian courts because it is respects the principle of equality of arms.