Brussels II Bis Regulation and the Competence of the Romanian Courts in the Divorce Cases

AuthorAssociate Professor Gabriela Lupsan, PhD
Position"Danubius" University of Galati
1. Introduction

Before Romania's EU accession, the provisions of article 148-157, Law no. 105/1992 on regulating the private international law relations1 indicating the jurisdiction of Romanian courts in divorce matters with an international element. Ruling on its jurisdiction, ex officio verified or after a plea invoked by the defendant of the jurisdictional incompetence , the Romanian judge had two solutions at hand, namely: either declared the competence of the court, rejecting it by the conclusion of the invoked exception, that would identify, the incidence of article 20 and 22 of Law no. 105/1992, the law applicable to divorce in matters of material law (the holder of the right to action, the reasons for divorce, divorce effects, etc.), or it could admit the exception, by dismissing the action by decision, as not belonging to the Romanian courts competence, but to a foreign court (article 157 of Law no. 105/1992). (Dumitrache, 1997, pp. 13- 20) (Diaconu, 2006)

Once Romania joins the European Union, a number of European Union Council regulations take priority over the national law and they have direct and immediate applicability in the causes that the Romanian courts judge.2 Referring to the processes in matrimonial matters, there are the depositions of Regulation (EC) no. 2201/2003 of the European Union Council of November 27, 2003 concerning the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing the Regulation (EC) no. 1347/20003, which are directly relevant in the Member States and which take precedence over the national laws.4

New powers of European Union in matters of private international law attract a double level of legal sources. In the first level, within the European Union, only between Member States, on the one hand, where national judges become "community" are obliged not only to apply the material community law, but they are also required to apply, in the manner imposed by the Court of Justice in Luxembourg, according to the writings of a doctrinaire (Bobeck, 2008, pp. 1-34); in the second level in a relation of the Member State with the third countries, non EU members.

2. The Determination of the Competent Court in Matrimonial Matters

The provisions of article 3 of Brussels II bis Regulation sets out seven objective criteria by which it is established the jurisdiction of the court, criteria that are neither cumulative nor hierarchical, but alternative, and depend on the choice of the spouses to bring an action for divorce in the courts of the following member states: the spouses (regardless of their nationality) have their habitual residence;5 in which they had their last habitual residence, if one of them lives in that state at the date of the notification; in which either spouse has his habitual residence, if the request for divorce is common; in which the defendant has his habitual residence, the claimant has his habitual residence, if he had resided there for at least a year before any action was brought to the court; the plaintiff has his habitual residence, if he had resided there for at least six months before making application and to be a national citizen of that member state; they are both citizens6 (in whose territory lies the common "domicile" in the case of Great Britain and Ireland ).

After analyzing these criteria, it results that habitual residence (article 2 points a) has become competitive liaison factor with the citizenship (article 3 lit. b), being placed by the Regulation in the center of a structure of competence which mobilizes all member courts and it gives to the forum of habitual residence of the spouses a special dimension in determining the jurisdiction of courts within the European Union. The competences provided in article 3 have an exclusive feature if one spouse has his habitual residency in a Member State or he is part of such State (article 6). It was also confirmed by the European Communities Court of Justice in Luxembourg in the case Sundelind7 Lopez from November 29, 2007.

Let us take for example the Romanian citizens, married and settled in Italy, in order to find out in which circumstances it becomes the competence of the Italian judge and of the Romanian one.

An Italian court has jurisdiction to hear the application for divorce, if the spouses have their habitual residency in Italy, if their last habitual residency was in Italy and one of the spouses still lives in Italy, if the defendant is resident in Italy, if the application for divorce is common and at least one of the spouses still lives in Italy, if the applicant is resident in Italy for at least a year before any action is brought; if the plaintiff is an Italian citizen and has residency in Italy for six months before the application or, finally, if both spouses are of Italian nationality.

A court in Romania may be competent in the given example, only in four cases, namely: both spouses, Romanian citizens, file for divorce by agreement of will in terms of article 38 paragraph 2 of the Family Code and any of the spouses is habitual resident in Romania; the defendant returned from Italy and lives in Romania; the applicant returned to Romania where he has his habitual residence at least six months before presenting the demand; both spouses have Romanian citizenship.

One can easily observe that there are several courts that are equally competent to deal with divorce proceedings, without any hierarchy between them based on the residence or nationality of the spouses. The applicant is the one who, in order to obtain a favourable decision for dissolution of marriage and whose movement is facilitated within the EU, assesses the seven criteria of competence and chooses one of them.

We may consider another example where a husband is an Italian citizen, the wife a Romanian citizen and the couple has established their habitual residence in Spain. After several years, wife wants to divorce. Under the article 3 of Brussels II bis Regulation, the couple can only file for the divorce proceedings in the courts of Spain, because in this state the spouses have their habitual residence. His wife can not inform the...

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