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In proceedings relating to the dissolution of a marriage involving spouses who are nationals or habitual residents of different EU Member States, the question which inevitably arises is ‘Which court can decide this case?’
EU Reg 2201/2003 provides a list of scenarios based on the habitual residence of the spouses, in order to determine which court shall have jurisdiction to determine such matrimonial matters. EU Reg 1103/2006 will also apply in order to grant that same court the authority to decide matters related to the matrimonial property regime applicable in connection with those same proceedings. EU Reg 2201/2003 also provides that the Court which gave a judgement on legal separation, also has jurisdiction to convert that judgment into a divorce. This concurrent working of the two regulations provides legal certainty to the parties within this EU context.
EU Reg 1103/2006 stipulates that the law applicable to the matrimonial property regime extends to all assets falling under that regime, regardless of their nature and/or location. Spouses in a cross-border situation have also been granted the freedom to choose the law applicable to their matrimonial property regime, so long as the law chosen is the law of a state with which the spouses have close links based on habitual residence or nationality. In the absence of a choice-of-law agreement, the Regulation provides a hierarchy of connecting factors to determine the applicable law. The law determined by this Regulation shall apply even if it is the law of a State which is not an EU Member State.
Decisions made under both EU Regulations are automatically recognised in all Member States, without any special procedures. However, certain grounds such as public policy, may form the basis for non-recognition. The same decision is enforceable in other Member states according to the procedure established by the law of the State where enforcement is sought. A decision on the application for a declaration of enforceability is subject to appeal.
