EUPillar T. v X. - Civ. (réf.) Bruxelles, 30 May 2007

Summary

The parties have Greek nationality and were married in Greece. They have two children (born in 1991 and 1996). They separated in 2006. The judge of the district of Woluwe-Saint-Pierre in Brussels issued two judicial orders to provisionally govern the separation of the parties. On 8 May 2007, the plaintiff, Mrs. T., initiated divorce proceedings including a request for provisional measures to govern the situation of the parties during divorce proceedings. The defendant, Mr. X., seised the Greek courts of divorce proceedings on 28 July 2006. However, these proceedings are concerned with the divorce only and do not relate to provisional measures. The judge presiding over the divorce proceedings will have to determine its own jurisdiction. Since the present court was seised on the basis of Art. 1280 Judicial Code (i.e. provisional measures during divorce proceedings). No other court is seised at the moment to decide on such provisional measures. Therefore, there is no lis pendens. In an international case such as this one, the court will have to examine its jurisdiction for each demand separately. The arguments developed by the parties as to the (lack of) urgency of the case are irrelevant. (i) Separate residences The Brussels I Regulation is not applicable since the status of natural persons is excluded from its scope (Art. 1). The Brussels IIa Regulation is not applicable either since it does not deal with issues such as property consequences of the marriage or any other ancillary measures (Recital 8). The Belgian courts have jurisdiction pursuant to Art. 42 Belgian Code of Private International Law. (ii) Parental responsibility and custody The Brussels IIa Regulation applies to the attribution, exercise, delegation, restriction or termination of parental responsibility (Art. 1). The Belgian courts have jurisdiction since the child is habitually resident in Belgium. (iii) Maintenance The Brussels IIa Regulation expressly provides that maintenance obligations are excluded from its scope (Art. 1(3)(e) and Recital 11). The Belgian courts have jurisdiction and Belgian law is applicable pursuant to Arts. 73 and 74 Belgian Code of Private International Law. DECISION OF THE COURT The Court sets a schedule for custody of the children during the summer holidays. The Court issues a certificate to ensure the immediate recognition of and enforcement of the decision (Arts. 40 and 41 Brussels IIa). The Court does not find it necessary to hear the children on this issue which is limited in scope. The parents had reached an agreement on the holiday schedule. SHORT CRITIQUE In this case, relating to divorce proceedings, the Greek court was the first seised. However, the proceedings in Greece were concerned exclusively with the divorce itself, while the proceedings in Belgium also included a request for provisional measures to govern the situation of the parties while the divorce is still pending. The court argues that these are two separate things and that it is the only court seised for these measures. That is correct. The court also correctly distinguishes its jurisdiction as to the object of the measures requested. As to the first issue, the separate residence of parties, the court decides that these matters do not fall within the scope of the regulation. However, that is probably untrue. See 2007-11-21c for another decision where a different judge (also seated in Brussels) came to the same conclusion. As to the issue of maintenance, the court fails to apply Art. 5(2) Brussels I. However, the solution under Belgian PIL rules is the same and leads to the jurisdiction of the Belgian courts. Finally, the Court decided to issue a certificate which is can do in accordance with art. 41(3) Brussels IIa. However, the court decided not to hear the children (10 and 12 years old), whereas this is a requirement laid down in Art. 41(2)(c).