EUPillar M.W. v E.H. - 2010/RK/220 - Antwerpen, 12 January 2011

Summary

The appellant, Mrs. W., has German nationality and is domiciled in Germany, the defendant, Mr. H., has Belgian nationality and is domiciled in Belgium. The parties have one child, S. The last marital residence of the spouses was in Brakel, Germany. Mr. H. left this residence on 4 October 2008 to return to Belgium. Several proceedings were commenced in Germany. The Ambsgericht Brakel, Familiengericht judicially enacted a provisional agreement between the parties on 20 November 2008. A definitive agreement regarding the rights of access to the child was reached on 6 August 2008, but on 20 August 2008, Mrs. W. brought proceedings regarding maintenance. Mr. H. brought divorce proceedings and an application for provisional measures before the Belgian courts of 6 October 2009. Mrs. W. contested the jurisdiction of the Belgian courts. The first judge accepted its jurisdiction on the basis of Art. 1280 Belgian Judicial Code since no divorce proceedings were pending in Germany and also ordered a few provisional measures. Mrs. W. appealed. The Antwerp Court of Appeal considers, first of all, that European law takes precedence over Belgian law and that the first judge should have examined its jurisdiction in application of Art. 17 Brussels IIa Regulation. The Court considers that this Regulation treats separately the question of jurisdiction in divorce proceedings on the one hand (Arts. 3 et seq.) and parental responsibility matters on the other hand (Arts. 8 et seq.). Where these two subject matters meet, Art. 12 Brussels IIa Regulation is applicable. S. has lived in Germany ever since she was born, so that in principle, the German courts have jurisdiction (cf. Art. 8 Brussels IIa Regulation). Nonetheless, Art. 12 provides that the courts of a Member State exercising jurisdiction on an application for divorce shall have jurisdiction in any matter relating to parental responsibility connected with that application where (a) at least one of the spouses has parental responsibility in relation to the child and (b) the jurisdiction of the courts has been accepted expressly by the spouses. The latter requirement is not fulfilled so that Art. 12 cannot be withheld. Mrs. W. has contested the jurisdiction of the Belgian courts from the very beginning. Mr. H. invokes Art. 20 Brussels IIa Regulation, to no avail. Not only is S. not present on Belgian territory; in the writ of summons, he did not attest to the urgency of the case. He merely asked for provisional measures pending the divorce proceedings on the basis of Art. 1280 Belgian Judicial Code. The Belgian courts do not have jurisdiction over the parental responsibility over S. On this point, the order of the first judge is rescinded. The Belgian courts do have jurisdiction over the other provisional measures ordered by the first judge, such as the designation of a notary, a settlement regarding the payment of common loans, the return of certain goods, etc. Short critique The court does not state explicitly on what basis it recognises its jurisdiction over the divorce proceedings. This legal basis can be found in Art. 3 Brussels IIa Regulation (Art. 3(1)(a), fifth and/or sixth indent). As to the application of Art. 20, we note that the court requires the presence of the child on its territory.