The jurisdiction and applicable law in an international divorce procedure
More often international aspects play a role in divorce proceedings. These international aspects could be relevant to establish the jurisdiction of the Dutch court and to determine which law is applicable in divorce proceedings. This will be illustrated by the following international divorce case:
Anna and Brody were married twelve years ago in Italy. During their entire twelve years of marriage they have lived in Italy. After four years of marriage Zoë was born and three years later Gary was born. Anna and Brody have the Dutch nationality. In January 2022 Anna and Brody decided that they wanted to get divorced. Soon after this decision Brody moves to Portugal. Anna stays in Italy with the children. In February 2022 Anna starts a divorce procedure in the Netherlands.
The Brussel II-bis regulation
In the above case, the jurisdiction of the Dutch court can be determined by the Brussel II-bis regulation. Article 3 1(a) states that in matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State in whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, 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 United Kingdom and Ireland, has his or her ‘domicile’ there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.
The jurisdiction and applicable law
The European Court of Justice has defined the term habitual residence. This is the place where the person has established the center of his interests, with the intention of giving it a fixed character. To determine the habitual residence, all the factual circumstances must be taken into account. In this case the Italian court has jurisdiction based on article 3 1(a) (second dash), because the habitual residence in this case is Italy. However, the Dutch court is also competent based on article 3 (b), because the nationality of both spouses is Dutch. Since Anna started the procedure in the Netherlands first, the Dutch court has jurisdiction even though Anna and Brody never lived in the Netherlands together.
After determining the competence of the Dutch court, it is important to determine which law is applicable. Article 10:56 BW (Burgerlijk Wetboek) states that Dutch law is applicable in international divorce proceedings, unless the parties made a choice for another law to be applicable. In the above case the parties did not decide on another law to be applicable. Therefore Dutch law is applied on the divorce itself.