EUPillar B. v A. - Bruxelles, 17 November 2011

Summary

The appellant argues that the Belgian Court of appeal has jurisdiction to hear his divorce and that Belgian law is applicable to it. Before the first judge, the German appellant unsuccessfully initiated divorce proceedings against the Italian defendant who is habitually resident in Italy. The first judge rejected its jurisdiction, as there was no basis for such jurisdiction in Regulation 2201/2003. The appellant had instituted his original claim on 6 July 2011. The defendant had subsequently instituted a similar claim before the Italian courts, which she argued had jurisdiction. The Court of Appeal refers to the rule of lis pendens under Art. 19(1) of Regulation 2201/2003, and thus continues to examine its jurisdiction, as the Belgian court was seised first. The appellant argues that two possible grounds for jurisdiction apply: he claims to reside still at the last conjugal habitual residence in Belgium and he claims to be habitually resident in Belgium for at least a year immediately before the institution of proceedings. In order to define ‘habitual residence’ in the scope of divorce proceedings the Court of Appeal refers to the principles stated in the case law of the European Court of Justice (ECJ) and to the definition of a ‘normal residence’ by the French Court of Cassation. The case law of the ECJ, however, relates to the ‘habitual residence’ of a child. In the current case, the child’s interests are of lesser importance. ‘Habitual residence’ is not defined in Regulation 2201/2003. The term should be interpreted autonomously in the light of the context of the provisions and the objective of the Regulation. The Court of Appeal considers that in order to distinguish habitual residence from mere temporary presence, both objective and intentional elements must be taken into account. First, the habitual residence demands a certain duration which reflects an adequate degree of permanence. However, this is not sufficient: the person concerned must have the intention to establish a permanent or habitual centre of his or her interests and to give this a lasting character. The habitual residence must then be established on the basis of all circumstances particular to each individual case. The Court of Appeal further investigates where the appellant’s ‘habitual residence’ is situated. It concludes that on 6 July 2011 the appellant habitually resided Belgium, as he has done since at least February 2009. Even though the appellant had been temporarily posted in other countries for professional reasons, he came back to Belgium with the intention to establish a durable stay. The appeal is therefore allowed. 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.