PIL instrument(s)

Case number and/or case name

N.R. v B.C. - Civ. Arlon, 20 November 2009

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

19 November 2009

Appeal history

CJEU's case law cited by the court

Summary

The applicant has Belgian nationality whereas the defendant is French. Both are habitually resident in France. The marriage was celebrated in Forest, Belgium. They never established their marital residence in Belgium. None of the alternative jurisdictional grounds of Art. 3 Brussels IIa allows the Court to accept its jurisdiction. It seems the courts of France have jurisdiction. However, France does not accept same-sex marriage – or divorce. Art. 11 of the Belgian Code on Private International Law is a forum necessitatis provision which allows the Belgian courts to withhold their jurisdiction when the cumulative conditions of proximity and necessity are fulfilled. The case at hand is closely connected with Belgian territory since one of the spouses has Belgian nationality and, more importantly, the marriage was celebrated in Belgium, precisely because Belgium is one of the rare States to recognise same-sex marriage. For that reason, proceedings in France do indeed seem impossible. The Belgian courts have jurisdiction. SHORT CRITIQUE This is one of several cases where the Belgian courts accept to hear a case related to a same-sex marriage on the basis of the "forum necessitatis" provision in the Belgian Code on Private International Law, even though they do not have jurisdiction pursuant to the Brussels IIa Regulation. The court does not ask itself whether same-sex marriages actually fall within the scope of Brussels IIa. This issue is still debated.