Case Study #1 – Jurisdiction in Matrimonial Matters (Without Children). Articles 3-7 Brussels IIa reg.

 

Cristina, an Italian national, and Calvo, a Spanish citizen, meet in January 2012 in USA while Calvo is working for a Spanish company as posted worker in San Diego (California) and Cristina is completing her two-year master course. They fall in love and decide to marry in Las Vegas six months later. In July 2013 they move to Barcelona to Calvo’s place; Cristina cannot find a job there and instead receives an offer in Italy: for an entire year the couple manage to meet either in Barcelona or in Milan (at Cristina’s place) almost all the weekends and spend their vacations together in two beautiful resorts one in Cyprus (for summer) and one in Lanzarote (for Christmas). But the long distance does not help the couple life; Cristina decides to file a request for separation in August 2014.

(drawn partially from Tribunale di Milano (Milan tribunal), order 16 April 2014)

1. Which Member State(s) Court(s) is (are) having jurisdiction to hear the case? How much time is needed to acquire residence? In case the couple life has been fragmented in more than one MS, which elements should be weighted as more relevant? Is the place of work relevant in matrimonial matters per se? How long should be the relevant permanence?

Questions to be analysed: Jurisdiction on matrimonial matters and, specifically, determination of habitual residence (weighting all the factual circumstances)

Applicable legislation:

• Jurisdiction on separation: Article 3(1)(a) Brussels IIa For matrimonial cases the Regulation lists seven jurisdictional criteria based both on habitual residence of one or both spouses (Article 3 (1) a), and on common nationality or common domicile in the case of the UK and Ireland (Article 3 (1) b). All the grounds of jurisdiction set out in Articles 3 are alternative. Thus the claimant (i.e. Cristina, in the case) can potentially bring an action for separation before any such forum State at her choice.
• In order to identify the specific forum/fora that in the case could have jurisdiction, the determination of habitual residence is crucial but no definition of it is given in the Regulation; it nevertheless must be an autonomous concept (not a national one), where should be pre-eminently referred to the objective circumstances; the subjective element (i.e. the intention of the spouses) can be of a certain importance as well, even if it would be not enough per se. In practical terms, the requirement of stability and regularity can be discretionary evaluated on a case-by-case analysis by each different Member States’ courts.

 

Territorial jurisdiction would be determined according to the internal rules.

EU case law

• CJEU Case C-168/08 (Hadadi). There is no hierarchy among the seven alternative grounds of jurisdiction set forth in Article 3. Jurisdiction of the courts of a Member State can be determined in presence of just one of the objective links indicated under Article 3 and thus also when the applicant “does not put forward other links” with that State (paras. 45 and 57). As a result, even if the claimant (i.e. Cristina) is linked to the court seised only, for example, on the basis of the sole habitual residence with the forum State protracted for more than one year that is enough (no other links are required with the forum). Obviously, if she is linked with more than one forum State she can even choose the most favourable, if she acts first (so called ‘forum shopping’). To this extent the dissimilar national substantive legal systems on divorce and separation could make a difference in the choice!
• Waiting for a future clarifying intervention by the Court on the interpretation to be given to habitual residence, some assistance can be found in earlier CJEU case-law on habitual residence of adults delivered for other areas of law (namely social security and taxation): CJEU Case C-452/93 (Fernández) “the place of habitual residence is that in which the official concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests. However, for the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account” (para. 22).

2. Let’s imagine a similar situation where Calvo and Cristina buy a brand new house together in Barcelona where Cristina moves all her stuff she has kept in the Milan apartment since then. After one year and a half in their nice home, Calvo is posted to Lithuania: while Cristina keep staying in Barcelona, Calvo goes back to Spain every weekend to stay with her. During the week, Calvo lives in a small house paid by his company in Vilnius and obtains the residence permit in Vilnius just six months after his arrival. After only other six months Cristina wants to file an action for commencing separation.
   In which forum State can she do it? Where could Calvo file an action for separation after one-year permanence in Vilnius: before the same judges Cristina could potentially go?
   Would the result change in case Calvo had previously obtained the Italian citizenship as husband of an Italian national pursuant to Italian law?

   (drawn partially from Cour d’appel d’Aix-en-Provence (Court of Appeal), 5 December 2007, No 07/11782 and Cour de Cassation (Court of Cassation),  24 February 2016-15 October 2016 No 15-10.288)

Questions to be analysed: Jurisdiction on matrimonial matters and, specifically, determination of habitual residence (relevance of the intention of the parties); presence of one common citizenship.

Applicable legislation:

• Jurisdiction on separation: Article 3(1)(a) and 3(1)(b) Brussels IIa The national rules on habitual residence, in case BIIa Regulation is applicable, cannot be referred to. The formal registration of residence in the public records of a Member State is not relevant per se. The intention of the spouses cannot be relevant per se but it could be evaluated as relevant when the circumstances prove it.

The common citizenship of the spouses could be enough to assess jurisdiction of the courts of the State of nationality (i.e., in the case, Italy) even if there are other forum States more strictly connected with the couple’s life (Spain) or anyway linked with one of the spouses (Lithuania); the first court seized will prevail (see following situation no. 3 for details on lis pendens).

EU case law

• CJEU Case C-168/08 (Hadadi, already quoted supra)
• CJEU Case C-294/15 (Mikołajczyk, paras 49-52): The last two indents of Article 3(1)(a) provide for the forum actoris “to protect the interest of the spouses”, adding a forum in favor of one of them when bringing to court an action dealing with their marriage, giving that a certain time have passed before the commencement of the proceedings. As a consequence, the Court stated that “a third party may not rely on such grounds of jurisdiction”.

3. Would the result change in case Calvo, as soon as he receives the notification of a separation proceeding pending in Italy, decides to bring an action for divorce before the Spanish judge?

Questions to be analysed: Jurisdiction on matrimonial matters and lis pendence

Applicable legislation:

• Jurisdiction on divorce: Article 3(1)(a) Brussels IIa Regulation
• Lis pendens between separation and divorce proceedings involving the same marriage: Article 19 Brussels IIa Regulation, to avoid judgments that are potentially opposite as to the marital status of the same couple, provides for a broad notion of lis pendens referring it to all the proceedings affecting their marriage and thus requiring that: “the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established”.

EU case law

• CJEU Case C-168/08 (Hadadi, already quoted supra)
  

4. Finally, let’s imagine that Calvo, instead of being Spanish, is a Cuban citizen, would all the previous answers change if all the other elements remain the same? Would you apply BIIa Regulation or the national rules in case Cristina starts the action first? Where could Calvo bring the action and on the basis of which rules?

Questions to be analysed: Jurisdiction on matrimonial matters and residual grounds of jurisdiction

Applicable legislation:

• Jurisdiction on matrimonial matters: Article 3 Brussels IIa Regulation
• Residual grounds of jurisdiction: Articles 6-7 Brussels IIa Regulation

EU case law

• CJEU Case C-168/08 (Hadadi, already quoted supra)
• CJEU Case C-68/07 (Lopez): the application of Brussels IIa, on one side, does not depend on any characteristic of the respondent, and, on the other, is confirmed whenever there is a court of a Member State having jurisdiction under Articles 3-5 (including situations where an action is brought against a respondent who is not national of nor resident in the EU.