EUPillar B. v A. - Trib. Bruxelles, 2 February 2011

Summary

The German plaintiff initiates divorce proceedings against the Italian defendant, who is habitually resident in Italy. The defendant contests the jurisdiction of the Belgian courts. According to Art. 17 Brussels IIa, the court of a Member State seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, shall declare of its own motion that it has no jurisdiction. The Court examines its jurisdiction on the basis of Art. 3 Brussels IIa Regulation. The last common habitual residence of the spouses was in Belgium. The defendant is habitually resident in Italy. Pursuant to Art. 3(1)(a), second indent, the court has jurisdiction only if the plaintiff still resides in Belgium. The court finds that a person's habitual residence is at the place where he or she has fixed the permanent or habitual centre of his or her interests, with the intention of establishing it there in a stable manner. It is a factual concept which relies on objective elements. The plaintiff had recently been re-registered in the population registry of Belgium, he had immovable property in Belgium and had maintained his fiscal domicile in this country while he was living in Tunisia. The plaintiff also says that he will necessarily return to Belgium in 2013 – although he does not corroborate this statement. In the present case, the court considers these factors insufficient to determine that the plaintiff is habitually resident in Belgium. Indeed, it is certain that the plaintiff has a residence in Tunisia (as proven by a certificated issued by the European Commission) and that he does not stay there incidentally or only temporarily. He probably has built professional relationships there. It has not been proven that the plaintiff intends to permanently return to Belgium and establish new personal and professional relations there. Therefore, the court declares it lacks jurisdiction to hear the case. Short critique This case is concerned with the interpretation of the notion of "habitual residence" of the spouses. It is a factual notion. The courts sometimes reach different conclusions on the basis of the same facts. This decision will be overturned on appeal. Where the court in first instance considers that the applicant should establish his intention to return to Belgium, the appeal court seems to presume that the applicant intends to return to Belgium unless evidence to the contrary is submitted.