The Court of Justice on the Duration of the Habitual Residence of a Spouse for the Purposes of the Brussels II bis Regulation
On 6 July 2023 the Court of Justice issued a judgement in BM v LO (C-462/22). The ruling provides guidance as to the interpretation of Article 3(1)(a) of the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility. Specifically, it refers to the sixth indent of the provision, whereby, in matters relating to divorce, legal separation or marriage annulment, jurisdiction lies with the courts of the Member State in whose territory the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is a national of the Member State in question.
It is worth noting that the new Brussels II ter Regulation does not bring any changes to the rules on jurisdiction in matrimonial matters. The interpretation by the Court of Justice of those provisions accordingly remain valid under the recast Regulation.
Factual Background
The request for preliminary ruling originated from the German Supreme Court (Bundesgerichtshof). The case concerned the divorce of a couple formed by a German husband and a Polish wife, who had married in Poland in 2000. The couple had twin sons born in 2003.
The facts are as follows.
After initially living in Germany for a number of years, the couple moved to Poland into a house they had built, in which the wife still lives today. They are also the joint owners of a dwelling in Warsaw, which they had rented until September 2012, after which it was at their full disposal.
The husband was a senior executive of a pharmaceuticals manufacturer. Since April 2010, he has been employed as the managing director for the Central Europe region, which includes Poland and the Netherlands, but not Germany. His activity is largely characterised by business trips and working from home. His employer provided him with staff accommodation in Aerdenhout (Netherlands), in which he resided on an occasional basis until the end of 2013. The husband has a self- contained dwelling in a house occupied by his parents, in Hamm (Germany).
The husband filed a divorce application with the District Court in Hamm (Germany) in October 2013. He submitted that his habitual residence had been in Hamm since mid-2012 at the latest. He moved out of the house in Poland in June 2012. Since June 2012, he has deepened his relationship with his new cohabiting partner in Hamm and has been caring for his parents. During his stays in Poland, he was limited to having contact with his two sons, which was always tied in with business trips.
The wife challenged the jurisdiction of the German courts and submitted that the husband did not move out of the house in Poland until the beginning of April 2013 and then lived in the jointly owned dwelling in Warsaw. They took turns picking up the two sons from school in Warsaw during the second semester of the 2012/2013 academic year. The husband resided almost exclusively in the Netherlands or Poland between April and November 2013.
The District Court in Hamm (Germany) considered that the German courts lack jurisdiction, and it dismissed the husband’s application as inadmissible. His appeal on the merits was dismissed also by the Higher Regional Court. The Higher Regional Court concluded that the husband’s habitual residence had been in Germany at the time when he filed his divorce application in October 2013. However, he had not yet been habitually resident in Germany for six months before he filed his divorce application (in April 2013). The husband’s appeal on a point of law, lodged with the referring court, is directed against the decision of the Higher Regional Court.
Preliminary Question
In the case at hand, the doubt concerns the provision of Article 3(1)(a) sixth indent of the Brussels II bis Regulation.
As the applicant was already habitually resident in Germany at the moment of filing a divorce claim, but not necessarily in the period of six month preceding this date, the Bundesgerichtshof decided to address the Court of Justice. The latter rephrased the preliminary question in the following way:
whether the sixth indent of Article 3(1)(a) of Regulation No 2201/2003 must be interpreted as meaning that that provision makes the jurisdiction of the court of a Member State to hear an application for the dissolution of matrimonial ties subject to the condition that the applicant, who is a national of that Member State, provides evidence that he or she has acquired a habitual residence in that Member State for at least six months immediately prior to the submission of his or her application, or to the condition that he or she shows that the residence which he or she acquired in that same Member State has become a habitual residence during the minimum period of six months immediately preceding the lodging of his or her application.
In simpler words the doubt in the case at hand is whether the applicant must prove habitual residence from the beginning and throughout that minimum period of six months immediately preceding the application.
The Judgment
The Court of Justice ruled that Article 3(1)(a)
makes the jurisdiction of the court of a Member State to hear an application for the dissolution of matrimonial ties subject to the condition that the applicant, who is a national of that Member State, provides evidence that he or she has acquired a habitual residence in that Member State for at least six months immediately prior to the submission of his or her application.
The Court of Justice reminded that the criteria for jurisdiction listed in Article 3 Brussels IIbis Regulation are objective, alternative and exclusive. While the first to fourth indents of Article 3(1)(a) expressly refer to the habitual residence of the spouses and of the respondent as criteria, the sixth indent of Article 3(1)(a) creates a forum actoris [para. 18-19].
The latter rule seeks to ensure a balance between, on the one hand, the mobility of individuals within the EU, in particular by protecting the rights of the spouse who, after the marriage has broken down, has left the MS where the couple had their shared habitual residence and, on the other hand, legal certainty (in particular legal certainty for the other spouse) by ensuring that there is a real link between the applicant and the MS whose courts have jurisdiction [para. 20].
The Court of Justice explained that, of course, for the purpose of relying on the sixth intend, a spouse must show his habitual residence in the territory of the given Member State at the time of lodging the application [para. 24]. The doubt is whether this habitual residence must be established from the beginning and throughout that minimum period of six months immediately preceding the application [para. 25].
As indicated by the Bundesgerichtshof there is a disagreement as to how the sixth indent of Article 3(1)(a) of the Brussels II bis Regulation are to be interpreted. According to first view, the applicant must have already had habitual residence in the MS of the court at the beginning of the six months period (referred to by the Bundesgerichtshof as “waiting period”). Pursuant to this view in order to exclude manipulation of jurisdiction to the detriment of the respondent, the applicant must prove a sufficiently close connection with the Member State of the court by virtue of habitual residence of a certain duration.
By contrast, according to the second standpoint, periods of mere de facto residence of the applicant must be included in the six-month period, as the commented provisions speaks of “residing” (and not “habitually residing”) in a Member State. Here, the Bundesgerichtshof compares the wording of Brussels II bis Regulation to the HCCH 1970 Divorce Convention, which wording is less ambiguous as to the character of residence. While establishing requirement of indirect jurisdiction, its Article 2(2)(a) provides that the requirement is fulfilled if “the petitioner had his habitual residence there and one of the following further conditions was fulfilled”, for example “such habitual residence had continued for not less than one year immediately prior to the institution of proceedings”.
While, agreeing with the first view (and acknowledging slightly different wording of Article 3(1) in the German version) the Court of Justice underlined that the commented provision must be understood in the light of other provisions of Brussels II bis Regulation. The Court of Justice explained that under Article 3(1)(a) second indent the court of the Member State in which the spouses were last habitually resident, in so far as one of them still resides there has jurisdiction. It is clear that the expression “still resides there” implies a temporal continuity between that residence and the place where the spouses were last habitually resident. As a result, the spouse who remained in the territory of the MS concerned has his or her own habitual residence there [para. 30]. This shows that no distinction should be made between the notion of habitual residence and residence in Article 3.
Only such understanding strikes a fair balance between legal certainty, while preserving the mobility of persons within the European Union and the possibility of obtaining the divorce, without unduly favouring that applicant, even though the forum actoris is a rule already favourable to him [para. 31].
Such strict understandings is needed as the jurisdiction based on the commented provision is not subject either to the agreement of the spouses or to the existence of a particular connection with the place where they lived together, past or present. Hence, requiring the applicant to demonstrate habitual residence in the territory of the Member State of the court seised for at least six months immediately preceding the lodging of the application is based on the need for that applicant to be able to establish a real link with that Member State [para. 33].
If, in contrast, the second view would be the correct one, the sufficiency of the period of habitual residence required of the applicant in the territory of the Member State of the court seised would, by definition, vary from case to case and according to the casuistic assessment of each national court seised [para. 34].
At the same time, the requirement as understood by the Court of Justice does not impose on the applicant any disproportionate burden, which could deter from relying on the commented ground of jurisdiction.
Final Remarks
Given the very favorable to the applicant ground of jurisdiction provided for in Article 3(1)(a) sixth indent of Brussels II bis Regulation, the interpretation provided by the Court of Justice is very reasonable. As suggested by the Bundesgerichtshof in its preliminary question, such interpretation is supported by the fact that the commented rule constitutes a special privileged treatment of the applicant, with the result that there is a need for special protection of the respondent, who in most cases has no connection to the court seised.
In practice, as noticed by the referring court, an ex-post assessment of the question as to whether the residence in the MS was already “habitual” at the beginning of the six-month period might be associated with considerable factual uncertainties and difficulties.
However, such problems are likely to arise only rarely. Usually, a spouse, while separated from the other, leaves the place where the the couple was resident and moves to another MS, which usually entails the return to “home” MS, which is the MS of his / her residence before the marriage or nationality.
Hence, as suggested in the AG’s opinion to IB v FA (C-289/20) it is possible for a spouse to acquire habitual residence almost immediately or at least after a short period of time, with the result that in practice the entire residence in the other MS will constitute habitual residence.
