EUPillar M. v L. - Bruxelles, 30 April 2004

Summary

The parties both have Moroccan nationality. Mr. M. married Mrs. L. on 19 January 2004 before two notaries (adoul) of the Court of First Instance of Berkane, in Morocco. The spouses state that in fact they never lived together and decided to put an end to their marriage by repudiation by mutual consent. The Court of First Instance of Berkane allowed the divorce on 12 July 2006. The definitive act of divorce was confirmed by two notaries on 26 August 2008 and recognised on 1 September 2008. After the divorce, Mrs. L. went to live in The Netherlands whereas Mr. M. resided – illegally – in Belgium where he lives with Mrs. M. E., the mother of his child O. who was born in 2007. Mr. M. was not able to marry Mrs. M. E. because the Belgian authorities consider he is still married to Mrs. L. because a divorce by repudiation is not recognised in Belgium. Therefore, Mr. M. brought divorce proceedings before the Brussels Court of First Instance of 19 October 2007. The first judge declined its jurisdiction because Mr. M. failed to establish that he had resided in Belgium for at least a year immediately before the application was made. The habitual residence must be determined by reference to factual and objective elements able to demonstrate that a person wishes to the establish the permanent or habitual centre of her interests in a Member State with a view to maintaining it there. The person needs to establish personal or professional links with that country. The enrolment in the population registers is not sufficient in this regard. Mr. M. needs to demonstrate that he established his habitual residence in Belgium at the latest on 19 October 2006, one year before he made is application for divorce. Mr. M. submits a statement from Mrs. M. E.’s landlord who confirms that they were living together from the moment Mrs. M. E. rented her apartment on 1 December 2005. Their child was born in 2007 and conceived in July 2006. He recognised the child on 22 August 2007. He also submits the following documents: - A statement from a medical center confirming that the applicant has followed a treatment there since 3 August 2006 - A public transport subscription for the month of May 2006 - An application for a residence permit made on 6 February 2007 - A request for financial assistance from the local CPAS for urgent hospital case It is clear from the circumstances that Mr. M. habitually resided in Belgium on 19 October 2006. The Belgian courts have jurisdiction. SHORT CRITIQUE The court correctly applies Brussels IIa. The decision turns on the interpretation of the notion of "habitual residence". The court applies Art. 3 Brussels IIa without mentioning the precise paragraph and indent.