Jurisdiction in divorce cases with an international element | In Principle

Many of us spend part of our lives abroad. Some migrate permanently but maintain strong ties with their country of origin. Some share their life between several countries, becoming citizens of the world with several passports, holding voting rights and real estate on different continents. For such people, a divorce may have global implications. For spouses with significant assets, the division of property is a real challenge. But while money is divisible, children are not. The determination or choice of the appropriate jurisdiction may prove crucial for proper safeguarding of litigants’ interests.

In principle, under the Polish Civil Procedure Code, the same court adjudicates all family matters, i.e. parental authority, parental contacts, spousal support, and child support.

But this rule is subject to restrictions when there is an international element in the case, such as foreign citizenship or habitual residence abroad. Thus, when hearing a divorce case with an international (foreign or cross-border) element, the court must first determine whether it has the right to decide the merits at all.

The court may have full jurisdiction (then it will rule on both matrimonial matters and parental authority and maintenance), partial jurisdiction (when the court will decide on divorce without ruling on parental authority and maintenance), or no jurisdiction at all.

Under the applicable provisions (Civil Procedure Code Art. 1099), the lack of national jurisdiction is taken into account by the court of its own motion at any stage of the case, and the lack of national jurisdiction is grounds for the invalidity of the proceedings (Art. 1099 §2).

Divorce usually decided at the place of habitual residence

The Brussels II bis Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility) is the instrument governing jurisdiction in matrimonial cases and parental responsibility cases in EU member states (except Denmark). (For the UK, the regulation will apply to proceedings initiated before the end of the transitional period, i.e. by 31 December 2020.)

The Brussels II bis Regulation applies in civil matters relating among other things to divorce, separation or annulment. Importantly, these rules apply irrespective of whether the spouses are nationals of an EU member state (C-68/07, Sundelind Lopez). However, the regulation does not lay down conflict-of-law provisions determining which substantive law is applicable to divorce. Therefore the competent court must determine the applicable law in accordance with internal law.

The link between habitual residence (résidence habituelle) and the choice of jurisdiction, both in matrimonial matters and in matters of parental responsibility, is decisive. The term “habitual residence” should not be interpreted in accordance with national law, but should be given an autonomous meaning under EU law. In simple terms, it refers not to the place of temporary presence at the time of filing an application, or the place of residence or intention to stay in a given country, but to the place that is the centre of one’s vital interests.

According to Art. 3 of the Brussels II bis Regulation, the competent courts in matters of divorce, separation or annulment are the courts of the EU member state in whose territory:

• Both spouses are habitually resident
• Both spouses were last habitually resident, if one of them still resides there
• The respondent is habitually resident
• In the event of a joint application, either of the spouses is habitually resident
• The claimant or applicant is habitually resident, if he or she resided there for at least a year immediately before the application was made, or
• The claimant or the applicant is habitually resident, if he or she resided there for at least six months immediately before the application was made and is either a national of the member state in question or, in the case of the UK or Ireland, has his or her domicile there (for purposes of the Brussels II bis Regulation, the term “domicile” shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland)

or of which both spouses are nationals, or, in the case of the UK or Ireland, in which they share a common domicile.

The grounds for jurisdiction in matrimonial matters are alternative, meaning that there is no order of priority between them (C-168/08, Hadadi). The Brussels II bis Regulation is intended to allow persons who have exercised their freedom of movement to choose the competent court flexibly. It may be easier for them to go to the courts of the member state where they habitually reside. Or they might prefer to turn to the courts in their home country, where they speak the language better and are better acquainted with the judicial and legal system (Advocate General Juliane Kokott’s opinion in C-168/08, Hadadi).

Despite providing such broad rules, the Brussels II bis Regulation does not provide for the possibility of adopting a clause agreeing on jurisdiction. Therefore, if such a provision is included in a prenuptial agreement it will not affect the jurisdiction in a divorce case.

Jurisdiction over parental authority (responsibility) not always in the same court as the divorce case

The basis for establishing jurisdiction in matters of parental responsibility (the vast majority of EU member states use the concept of “parental responsibility” rather than “authority,” emphasising the child’s membership of the family rather than the notion of power over the child) is the child’s habitual residence.

In C‑497/10, Mercredi, also confirmed in the settled case law, the Court of Justice held that the meaning and scope of the “habitual residence” concept should be determined in accordance with the principle of the best interests of the child, in particular the criterion of proximity. This corresponds to the place where the child shows some integration with the social and family environment. It is for the national court to determine that place based on all the facts of the case. The conditions and reasons for the child’s stay in the member state in question, as well as his or her nationality, are particularly important. In addition to the child’s physical presence in the member state, other factors should demonstrate that this presence is not merely temporary or occasional.

However, there are three exceptions to the rule basing jurisdiction in matters of parental responsibility on the child’s habitual residence.

The first exception is that where a child moves lawfully from one member state to another, the courts of the member state of the child’s former habitual residence retain jurisdiction for three months following the move, even though the child is already habitually residing in another state (Art. 9 of the Brussels II bis Regulation).

The second exception applies to the unlawful change of the child’s place of habitual residence. In such a situation, as defined and regulated by Art. 10 of the regulation, jurisdiction shall be established in favour of the court in whose territory the child was habitually resident immediately before the wrongful removal.

The aim of this rule is to maintain the existing position of the entity (parent or institution) whose rights of custody have been violated and to prevent the child’s abductor from invoking the jurisdiction of the place of the illegally changed habitual residence of the child.

The jurisdiction of the courts of the member state where the child is currently present can only be established if the removal of the child ceases to be unlawful because the situation is resolved, expressly or implicitly, as set out in the Brussels II bis Regulation.

Indeed, Art. 10 of the regulation provides for situations where the person having custody authorises the removal of the child or where a court whose jurisdiction is retained due to the wrongful removal of the child issues a judgment approving the removal or granting rights of custody in a way not entailing the return of the child. Art. 10 similarly provides for a situation where for one year a person entitled to request the return of the child has either not made a request to that effect or has withdrawn the request and not reinstituted the case seeking the return of the child. In all these cases, jurisdiction shall be transferred to the courts of the member state to which the child has been wrongfully removed (position of Advocate General Yves Bot in C-403/09, Detiček).

The third exception covers the situation where adjudication on parental responsibility is linked to a divorce decision (Art. 12(1) of the Brussels II bis Regulation). The court granting the divorce shall have jurisdiction if the following conditions are all fulfilled:

• At least one of the spouses has parental responsibility towards the child.
• The spouses and all holders of parental responsibility accept, formally or otherwise unequivocally, the jurisdiction of the court granting the divorce, which must be determined by the court at the time when the application is brought before it.
• The jurisdiction of the court is in the best interests of the child.

The moment of recognition of jurisdiction referred to in Art. 12(1) of the regulation should not be interpreted in this technical legal sense, but in light of the intention of bringing legal proceedings. Therefore, the moment of recognition of jurisdiction is when the parties could earliest recognise jurisdiction in a legally binding manner. For the claimant, this is the time of filing a statement of claim and for the defendant, responding to the statement of claim (Kraków Court of Appeal judgment of 11 January 2016, case no. I ACz 2406/15).

Where the jurisdiction of a member state court cannot be determined on the basis of the Brussels II bis Regulation, the jurisdiction shall be determined in each member state by the law of that state.

Under certain conditions, the Brussels II bis Regulation also provides for the possibility of transferring a case or part of it from a court having jurisdiction to a court of a member state with which the child has a special connection. (A child is presumed to have a special connection with a member state if the child has already acquired a habitual residence in that member state after the initiation of the proceedings, the child holds the nationality of that state, the parental responsibility holder has a habitual residence in that state, or the child’s property is located in that state and the case concerns measures for the protection of the child in connection with the management, protection or administration of that property.) Pursuant to Art. 15 of the regulation, a case may be transferred to a court of another member state only if three premises are met:

• The child has a special connection with another member state which, in the opinion of the court, has jurisdiction to hear the case on the merits.
• The court of the other member state is better-positioned to adjudicate the case.
• The best interests of the child are served by the transfer of the case, i.e. without risking a negative impact on his or her situation (C‑428/15, D.; C‑530/18, EP v FO).

Maintenance obligations

The issue of jurisdiction in maintenance matters is governed by the Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations).

The Maintenance Regulation governs all maintenance obligations, including maintenance obligations between spouses as well as maintenance obligations of parents towards their minor children. It does not matter whether children were born of a marriage or not.

The courts having jurisdiction to deal with matters relating to maintenance obligations are the court of the defendant’s habitual residence or the court of the creditor’s habitual residence. If the maintenance obligation is a consequence of a decision on parental responsibility, the jurisdiction of the court is the same as the jurisdiction of the court on matters of parental responsibility (Art. 3 of the Maintenance Regulation). This means, for example, that in the case of wrongful child removal, the divorce court will have no jurisdiction to rule on maintenance for the joint minor children of the spouses.

With regard to maintenance obligations between spouses, under the rules set out in Art. 4, the regulation allows the spouses to enter into a choice-of-court agreement with regard to the competence of a given court to resolve disputes that have already arisen or may arise between them in matters relating to maintenance obligations. On the other hand, the regulation excludes the possibility of an agreement on jurisdiction concerning maintenance obligations in respect of children under the age of 18.

Jurisdiction in matters outside the EU

The jurisdiction of Polish courts in matrimonial matters and in matters of matrimonial property relationships is exclusive only if three premises are all met, namely that the spouses are Polish citizens and have their place of residence and place of habitual residence in Poland (Civil Procedure Code Art. 1103¹ §2).

The Brussels II bis Regulation, and also ratified international agreements (in particular, the 1996 Hague Convention on Parental Responsibility and Protection of Children, but Poland is also a party to several bilateral agreements with non-EU states), exclude the national court from exercising the jurisdictional rules provided for in Art. 1103 and 1103¹ of the Civil Procedure Code. (In practice, the application of Polish jurisdictional rules will be rare. This may be the case, for example, when a case involves the rights of an unborn child (nasciturus) whose status is outside the scope of EU regulations and international agreements. The Polish jurisdictional rules will also apply to cases with the United States, which has not ratified any international agreement on jurisdiction or cooperation in family matters and with which Poland is not bound by any bilateral agreement on cooperation in family matters.)

Optional jurisdiction of Polish courts in matrimonial matters exists when at least one of the following equivalent circumstances exists:

• Both spouses had their last place of residence or last habitual residence in Poland, if one of them still has their place of residence or habitual residence there.
• A spouse (a foreigner) who is the claimant has had his/her place of residence or habitual residence in Poland for at least one year immediately prior to initiation of proceedings.
• A spouse who is the claimant is a Polish citizen and has had his/her place of residence or habitual residence in Poland for at least six months immediately prior to initiation of proceedings.
• Both spouses hold Polish citizenship.

First-come, first-served

It can happen that spouses bring divorce proceedings in different states of the European Union. In such a situation, 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. If the first court finds that it is competent, the second court shall find that it is not competent (Art. 19 of the Brussels II bis Regulation).

The choice of the most favourable jurisdiction by one of the spouses may be motivated by financial considerations (differences in court fees or attorney’s fees, or favourable substantive law for resolving the spouses’ property issues), the desire for an accelerated divorce without a period of mandatory separation, or the absence of the need to demonstrate a complete and permanent breakdown of the marriage. It may also be the decision of a person who has moved abroad for personal or professional reasons and has applied for divorce in his or her (current) locally competent court. Whether the choice of jurisdiction is a deliberate procedural tactic or simply a consequence of moving to another state, its effects can be equally detrimental to the other party.

Before deciding on jurisdiction, the following issues should be considered with counsel:

• Does the law of the state in question allow for divorce without a period of mandatory separation?
• How long can divorce proceedings last in a given jurisdiction?
• What may be the financial consequences of divorce in a given country? (For example, whether under the laws in that country assets acquired before the marriage form part of the statutory joint property of husband and wife, or whether property acquired by inheritance or gift is included in joint property.)
• Will the courts of a given state be entitled to issue injunctive relief barring marital property from being transferred outside its jurisdiction?
• How do the courts of a given jurisdiction handle parental disputes? (The practice of the courts, and not only the applicable law, is crucial here, as are issues of the effectiveness of judicial enforcement in the absence of cooperation from the other parent. Many countries have adopted regulations restricting decisions on the physical exercise of parental care solely by one parent, and encourage the use of alternate care. In other countries, physical care by only one parent, usually the mother, is the default standard.)
• Will the divorce judgment be recognised in the state where a litigant intends to move after the divorce?
• What will be the costs of obtaining a divorce and other proceedings related to the divorce in the given jurisdiction?

Anna Olejniczak-Michalska, attorney-at-law, Private Client practice, Reprivatisation practice, Wardyński & Partners