Lhen bi-national couples (Belgian-Spanish, German-Italian) wish to divorce, a first obstacle arises: which court has jurisdiction to rule? the European regulation Brussels II bis of November 27, 2003 provides several solutions. He says in particular that it may be the court in whose territory the ” habitual residence “ from “Applicant”, if he has lived there for at least a year. But locating this habitual residence is not always easy, as the following case shows.
In August 1994, Maureen X (invented first names), Irish, and Pierre W, French, married in Ireland, where they founded a family. In December 2018, it was in France, before the Tribunal de Grande Instance (TGI) of Paris, that Pierre filed a petition for divorce. He explains that he has established his habitual residence there since May 2017, the date on which he obtained an indefinite employment contract.
Maureen disputes it: she claims that he ” keep on going ” to come to Ireland on weekends and holidays to see their children. It therefore considers that the Irish court has jurisdiction.
“Discretionary power”
The TGI judges that Mr. W “Share his life” between two countries, France, where he has “ installed the center of his professional interests “, and Ireland, where he passes “ the rest of the time “. He declares himself incompetent to rule. The Paris Court of Appeal, which Pierre seizes, decides to question the Court of Justice of the European Union: can a spouse have his habitual residence in two Member States, under the terms of the Brussels II bis regulation?
November 25, the Court answers in the negative: to admit the contrary “Would be liable to harm legal certainty”. The notion of habitual residence, she explains, “Is characterized” through “Two elements”: a “Stable stay”, and the ” will ” of the interested party ” to transfer “ the center of his interests vital. These two elements are, “A priori”, united in the case of Pierre, who explains divorcing because his wife refuses to join him in Paris, where he has been working since 2010. The Court invites the Parisian court to do so. ” to verify “.
Why would Maureen prefer the divorce to take place in Ireland? “Irish judges have a very strong discretionary power”, explains Me Charlotte Butruille-Cardew, lawyer specializing in international divorces at CBBC law firm.
“When liquidating the matrimonial regime, they tend to protect the most vulnerable spouse – often the wife –, to which they can grant a third of the goods, according to the statistics of Notaries of Europe. “ While in France, “ the judges are bound by the applicable matrimonial regime ”, here, obviously, the separation of property.