Brussels II

On 1 March 2001, Council Regulation (EC) No 1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses (Brussels II) came into force.[1] The Regulation marked a departure for the European Community and was the first in a series of legislative instruments dealing with jurisdictional issues as they arise in relation to family law issues.

The original Brussels II Regulation provided an exclusive list of jurisdictional bases that must be used when a matter falls within their scope. Since the grounds of jurisdiction are common across all contracting states, once a judgment is handed down the original exercise of jurisdiction cannot be challenged. Further, recognition and enforcement can only be opposed on extremely limited grounds.

The issues covered in the Brussels II Regulation regime can be divided into two categories: matrimonial proceedings and concurrent parental responsibility proceedings. Article 1(1)(a) provides that the Regulation shall apply to "civil proceedings relating to divorce, legal separation or marriage annulment." This first section is only concerned with covering the actual proceedings that end a marriage. The second part of Article 1(1) states that the regulation shall apply to "civil proceedings relating to parental responsibility for the children of both spouses on the occasion of the matrimonial proceedings referred to in (a)". This section is also only dealing with a narrow subset of the potential civil proceedings that might arise with regard to parental responsibility, those that deal with children of both spouses where the children are habitually resident in a Member State and that arise on the occasion of the matrimonial proceeding identified in Article 1(1)(a).

Like civil and commercial matters, compromises (settlements) have been made to establish a common jurisdictional framework aimed at achieving certainty within the 14 European Member states as a whole, excluding Denmark. Article 2 of the Regulation sets our seven jurisdiction bases, all of equal status, with regard to divorce, legal separation, and nullity actions. These jurisdictional bases open up jurisdiction to the courts of the member state in which the spouses are habitually resident, or in the case of a joint application, either of the spouses is habitually resident, the spouses were last habitually resident, insofar as one of them still resides there, the applicant is habitually resident provided this is reinforced by 12 or 6 months residence, or jurisdiction may be founded on the couple's common nationality.

Regarding cases involving parental responsibility, Article 3 states that the courts having jurisdiction in the matrimonial proceedings covered by Article 2 are able to take jurisdiction in a matter relating to parental responsibility over a child of both spouses where the child is habitually resident in that Member State. That being said, under Article 3(2) where the child is not habitually resident in the Member State that has jurisdiction over the matrimonial proceedings, but is nevertheless habitually resident in another Member State, the jurisdiction of the former is restricted to cases where: (a) at least one of the spouses has parental responsibility to the child; and (b) the jurisdiction of the courts has been accepted by the spouses and is in the best interests of the child.

In order to ensure that no jurisdictional conflicts arise, the Regulation employs a lis pendens provision based on the strict application of the prior temporis formula. This means that the court second seised will stay its proceedings until the jurisdiction of the court first seised is established. Article 11 provides certainty but also restricts flexibility. Article 7 states that the grounds of jurisdiction in Articles 2-6 are exclusive, however, Article 8 provides that member states may have recourse to their residual grounds of jurisdiction whenever no court of a Member State has jurisdiction under Articles 2-6.

The challenges that exist in determining the scope of the Regulation in terms of jurisdiction do not apply in terms of recognition and enforcement. Under recognition and enforcement it is clear that where a judgment is delivered to one Member State, regardless of the jurisdictional basis, it will be recognized by the other Member states without any special procedure required.

Despite recognition being automatic, it is still open to any interested party to apply for a decision that the judgment not be recognized. While the mechanics for this are grounded in national law, the grounds of non-recognition are restricted to those provided by Article 15 of the regulation. Regarding enforcement, Article 21 refers exclusively to judgments on the exercise of parental responsibility, as recognition of an order ending a matrimonial relationship is sufficient.

• International child abduction
• Hague Abduction Convention

• Brussels II Regulation (EC) No 1347/2000