Lietuvių
Hrvatski
Español
ItalianoTina, a Croatian national, after she had been unsuccessfully searching for a job since she obtained her master’s degree in 2006, decided to go to the UK in 2007 in search of employment. Soon, she got a job and at the same time met Marko, a national of Bosnia and Herzegovina, who was already working for a UK company in London. The couple married after few months. In 2008, their daughter Iris was born. In January 2016, one of the spouses wishes to ask for a divorce and claim parental responsibility over Iris.
- The courts of which MSs have jurisdiction to decide on divorce and parental responsibility?
Questions to be analysed: jurisdiction on divorce and parental responsibility matters, separately for spouses and child.
Applicable legislation:
- Jurisdiction on divorce: Article 3 Brussels IIa Regulation
- Jurisdiction on parental responsibility matters: Article 8 Brussels IIa Regulation
EU case law:
This is a clear-cut case so there is no need to resort to case-law. Perhaps only marginally to the CJEU Case C-523/07: for Article 8 Brussels IIa Regulation, regarding the concept of ‘habitual residence’.
Suppose that instead of the previous scenario, in 2010, Tina changed her employer and started working for British Petroleum and was posted to work in Baku, Azerbaijan. Marko and Iris joined her. They decided to live in Baku from September to May, and spend their summers either in UK or Croatia. In September 2014, Iris started attending an international school in Azerbaijan. In January 2016, one of the spouses wishes to ask for a divorce and claim parental responsibility over Iris.
- Are answers to the above question 1 altered by the new circumstances?
Questions to be analysed: jurisdiction on divorce and parental responsibility matters, separately for spouses and child; criteria which affect the haitual residence: reasons to move, periods (duration and which periods witner/summer) of stay, workplace, school (relevance of international or local character) etc.
Applicable legislation:
- Jurisdiction on divorce: Article 3 Brussels IIa Regulation
- Jurisdiction on parental responsibility matters: Article 8 Brussels IIa Regulation
EU case law:
CJEU C-452/93 regarding the posting of and EU offical which may be used by analogy for Article 3 Brussels IIa Regulation, and in which it is stated that “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.”
CJEU Case C-523/07: for Article 8 Brussels IIa Regulation, regarding the concept of ‘habitual residence’ which “must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.”
Suppose that instead of the previous course of events, the situation developed as follows. In June 2015, while the family was in Croatia, their second daughter Ana was born. Tina left the baby to her grandmother’s care and returned to the UK and Baku to complete some paper work related to her employment. In September 2015, the family returned to Europe: Marko and Iris to the UK where he signed a lease agreement for a three-bedroom apartment for the following 3 years, and Tina to Croatia to take care of baby Ana. As of September 2015, Marko enrolled Iris to school in the UK and refused to let her go to Croatia. In January 2016, Tina submitted an application to Croatian courts starting divorce and parental responsibility proceedings. She sought to have both children’s habitual residence established with her. A few days later, Marko commenced parental responsibility proceedings in the UK.
3.a Do courts of UK or Croatia have jurisdiction to decide on divorce and parental responsibility?
Questions to be analysed: jurisdiction on divorce and parental responsibility matters, separately for spouses and each child; the criteria which affect the haitual residence: reasons to move, periods of stay, lease agreement, workplace, school (registration), presence at the territory, etc.
Applicable legislation:
- Jurisdiction on divorce: Article 3 Brussels IIa Regulation
- Jurisdiction on parental responsibility matters: Article 8 Brussels IIa Regulation
EU case law:
CJEU C-452/93 regarding the posting of and EU offical which may be used by analogy for Article 3 Brussels IIa Regulation, and in which it is stated that “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.”
CJEU Case C-523/07: for Article 8 Brussels IIa Regulation, regarding the concept of ‘habitual residence’ which “must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.”
CJEU Case C-111/17 PPU: for Article 8 Brussels IIa Regulation, regarding the concept of ‘habitual residence’ which “must be interpreted as meaning that, in a situation, such as that in the main proceedings, where a child has been born and has lived continuously with her mother for several months, in accordance with the joint wishes of her parents, in a Member State other than that where those parents were habitually resident before her birth, the initial intention of the parents with respect to the return of the mother, together with the child, to the latter Member State cannot allow the conclusion that that child was ‘habitually resident’ there, within the meaning of that regulation. Consequently, in such a situation, the refusal of the mother to return to the latter Member State together with the child cannot be considered to be a ‘wrongful removal or retention’ of the child, within the meaning of Article 11(1).”
3.b How should the situation of parallel proceedings be resolved?
Questions to be analysed: establishing cronological order of the two proceedings; course of action for the two proceedings, separetely for the part relating to divorce and for the part relating to parental responsibility
Applicable legislation:
- Lis pendens and related actions: Article 19 Brussels IIa Regulation
- Seising of the court: Article 16 Brussels IIa Regulation
EU case law:
CJEU C-173/16 for Article 16 Brussels IIa Regulation, which “must be interpreted to the effect that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law lodging that document does not of itself immediately initiate proceedings.”
Now suppose that instead of the previous developments, Tina and Ana joined Marko and Iris in UK in October 2015, where Marco has already signed a lease agreement for a three-bedroom apartment for the following 3 years. Soon after Tina realised that she was pregnant again. In March 2016, when Tina was eight months pregnant, the family travelled together to Croatia so that Tina could give birth there and benefit from assistance of her mother. They were accommodated in the family house in Croatia, where Tina used to live as a girl and where her mother is still residing. On 3 April 2016, Tina gave birth in Croatia to Max who has remained there since with his mother and siblings. A week after Max was born, Marko and Iris returned to UK for work and school respectively. However, Tina did not return and decided to remain in Croatia with Ana and Max as evident from the spouses’ e-mail correspondence. In September 2016, Marko commenced the proceedings for return of Ana and Max to UK. A week later, Tina submitted an application to Croatian courts starting divorce and parental responsibility proceedings concerning all the children. She claims that Marko and she never stated the exact date of return and that they agreed to spend together the summer holidays, in August, in Croatia. Also, she sought to have all children’s habitual residence established in Croatia. A few days later, Marko commenced parallel proceedings in the UK. Marko claims that they have agreed that Tina should stay in Croatia with two children until May 2016, when they should have had all be re-joined in UK. He also claimed that the children’s habitual residence is in UK.
4.a Which court is competent to rule on parental responsibility over this child?
Questions to be analysed: jurisdiction over parental responsibility matters, separately for each child; the criteria which affect the habitual residence: reasons of stay, periods of stay, lease agreement, workplace, school, presence at the territory, etc.
Applicable legislation:
- Jurisdiction on parental responsibility matters: Article 8 Brussels IIa Regulation
EU case law:
CJEU Case C-111/17 PPU: for Article 8 Brussels IIa Regulation, regarding the concept of ‘habitual residence’ which “must be interpreted as meaning that, in a situation, such as that in the main proceedings, where a child has been born and has lived continuously with her mother for several months, in accordance with the joint wishes of her parents, in a Member State other than that where those parents were habitually resident before her birth, the initial intention of the parents with respect to the return of the mother, together with the child, to the latter Member State cannot allow the conclusion that that child was ‘habitually resident’ there, within the meaning of that regulation. Consequently, in such a situation, the refusal of the mother to return to the latter Member State together with the child cannot be considered to be a ‘wrongful removal or retention’ of the child, within the meaning of Article 11(1).”
4.b Is it necessary to merge the cases of siblings? What are the options under these circumstances?
Questions to be analysed: jurisdiction over parental responsibility matters, separately for each child; the criteria which affect the haitual residence: reasons to move, periods of stay, lease agreement, workplace, school, presence at the territory, etc.
Applicable legislation:
- Jurisdiction on parental responsibility matters: Article 8 Brussels IIa Regulation
- Transfer of the proceedings: Article 15 Brussles IIa Regulation
EU case law:
CJEU Case C-111/17 PPU: for Article 8 Brussels IIa Regulation, regarding the concept of ‘habitual residence’ which “must be interpreted as meaning that, in a situation, such as that in the main proceedings, where a child has been born and has lived continuously with her mother for several months, in accordance with the joint wishes of her parents, in a Member State other than that where those parents were habitually resident before her birth, the initial intention of the parents with respect to the return of the mother, together with the child, to the latter Member State cannot allow the conclusion that that child was ‘habitually resident’ there, within the meaning of that regulation. Consequently, in such a situation, the refusal of the mother to return to the latter Member State together with the child cannot be considered to be a ‘wrongful removal or retention’ of the child, within the meaning of Article 11(1).”
4.c How should the situation of parallel proceedings be resolved?
Questions to be analysed: establishing cronological order of the two proceedings; course of action for the two proceedings, separetely for the part relating to divorce and for the part relating to parental responsibility
Applicable legislation:
- Lis pendens and related actions: Article 19 Brussels IIa Regulation
- Seising of the court:: Article 16 Brussels IIa Regulation
EU case law:
CJEU C-173/16 for Article 16 Brussels IIa Regulation, which “must be interpreted to the effect that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law lodging that document does not of itself immediately initiate proceedings.”
CJEU C-296/10 for Article 19(2) Brussels IIa Regulation, which is “not applicable where a court of a Member State first seised for the purpose of obtaining measures in matters of parental responsibility is seised only for the purpose of its granting provisional measures within the meaning of Article 20 of that Regulation and where a court of another Member State which has jurisdiction as to the substance of the matter within the meaning of the same regulation is seised second of an action directed at obtaining the same measures, whether on a provisional basis or as final measures.”