Applicable Law Cross Border Family

Matrimonial and parental judgments: jurisdiction, recognition and enforcement (Brussels IIa)

Regulation (EC) No 2201/2003 – jurisdiction, recognition and enforcement of matrimonial and parental judgments

A single legal instrument to help international couples resolve disputes, involving more than one country, over their divorce and the custody of their children.

It sets out:

—rules determining which court is responsible for dealing with matrimonial matters and parental responsibility in disputes involving more than one country
—rules making it easier to recognise and enforce judgments issued in one EU country in another
—a procedure to settle cases in which a parent abducts a child from one EU country and takes them to another.
It does not deal with substantive family law matters. These are the responsibility of individual EU countries.

Scope

The Regulation applies to civil law cases involving more than one country that relate to:

—divorce
—legal separation
—the annulment of a marriage
—any aspect of parental responsibility (such as custody and access rights).
One of its main objectives is to uphold children’s right to maintain contact with both parents, even if they are separated or live in different EU countries.

The Regulation does not apply to cases concerning:

—grounds for divorce or the law applicable in divorce cases
—divorce-related issues such as maintenance
—establishing and challenging paternity
—judgments on adoption and the associated preparatory measures
—annulling or revoking an adoption
—a child’s first and last names
—the independence of children from their parents or guardians
—trusts and inheritance
—measures taken in response to criminal acts committed by children.

Matrimonial matters

There is no general rule on jurisdiction in matrimonial matters. To determine the EU country where the courts have the right to rule on a case, the Regulation instead sets out 7 alternative grounds for jurisdiction based on the spouses’ nationality or on where they normally live.

Parental responsibility

It applies to:

—rights of custody and rights of access
—guardianship, curatorship and similar legal arrangements
—the designation and functions of any person or body in charge of the child or the child’s property, or which represents or assists the child
—placing the child in a foster family or in institutional care
—measures to protect the child, covering the administration, conservation or use of his or her property.

Such matters generally come under the jurisdiction of the courts in the EUcountry where the child usually lives . If it is impossible to establish where a child usually lives (as in the case of refugees), the EU country where the child is present automatically assumes jurisdiction.

Child abduction

The Regulation also lays down rules to settle cases in which children are unlawfully removed or kept.The courts of the EU country where the child normally lived immediately before abduction continue to have jurisdiction until the child lives mainly in another EU country.

Recognition

Under the Regulation, any EU country must automatically recognise judgments given in another EU country on matrimonial and parental responsibility matters. Recognition can be refused if, for example:

—recognition is clearly contrary to public policy
—the defendant did not receive the document initiating proceedings in time to arrange legal defence (in cases where the judgment was given in the defendant’s absence)
—recognition is incompatible with another judgment given between the same parties.

For judgments concerning parental responsibility, recognition can also be refused if:

—the child was not given an opportunity to be heard
—on the request of a person claiming that the judgment infringes his or her parental responsibility, the judgment was issued without this person having been given an opportunity to be heard.

Enforcement

A judgment on the exercise of parental responsibility enforceable in the EU country where it was issued can be enforced in another EU country when it has been declared enforceable there at the request of any interested party. However, no declaration is required for judgments granting rights of access or concerning the return of a child that have been certified by the original judge in accordance with the Regulation.

Cooperation between central authorities in parental responsibility cases

Each EU country designates a central authority (or more than one) whose duties include:

—helping parents seeking the return of a child abducted by another parent and taken to another EU country
—promoting information-sharing on national law and procedures;
—helping courts communicate with each other
—helping parents or guardians seeking to recognise and enforce decisions
—seeking to resolve disagreements between parents or guardians through alternative means such as mediation.

Central authorities meet regularly as members of the European Judicial Network in civil and commercial matters.

Existing agreements

As a general rule, this regulation replaces existing conventions on the same matters involving 2 or more EU countries. In relations between EU countries, it takes precedence over certain multilateral conventions:

—1961 Hague Convention (law applicable to protection of minors)
—1967 Luxembourg Convention (recognition of decisions on marriage);
—1970 Hague Convention (recognition of divorces)
—1980 European Convention (custody of children)
—1980 Hague Convention (civil aspects of international child abduction).

With regard to the Hague Convention of 19 October 1996 on parental responsibility and measures for the protection of children, the regulation is fully applicable if the child normally lives in an EU country.

Exemptions and special provisions

Denmark is not a party to the Regulation and is therefore not bound by it.

Special provisions are applicable to:

—the relations of Finland and Sweden with Denmark, Iceland and Norway as regards the application of the Nordic Marriage Convention of 6 February 1931
—relations between the Holy See and Portugal, Italy, Spain and Malta.

ACTS

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, repealing Regulation (EC) No 1347/2000

Regulation (EC) No 2201/2003

Regulation (EC) No 2116/2004

Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (Official Journal L 189, 22.7.2010, pp. 12-13)

Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Official Journal L 343, 29.12.2010, pp. 10-16)

Commission Decision 2012/714/EU of 21 November 2012 confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 323, 22.11.2012, pp. 18-19)

Commission Decision 2014/39/EU of 27 January 2014 confirming the participation of Greece in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 23, 28.1.2014, pp. 41-42)

Matrimonial and parental responsibility judgments — jurisdiction, recognition and enforcement

Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction

It repeals Regulation (EC) No 2201/2003, known as ‘The Brussels IIa Regulation’, to provide more effective rules protecting children and their parents caught up in cross-border parental-responsibility disputes, for example concerning custody, access rights and child abduction.
It aims to speed up procedures because of the need to move quickly to protect the best interests of the child in many of these circumstances.

It applies from 1 August 2022. Some rules concerning delegated acts and the requirement of EU countries to supply information to the European Commission apply from 22 July 2019.Regulation (EU) 2019/1111 repeals Regulation (EC) No 2201/2003 as of 1 August 2022.

KEY POINTS

The regulation applies to civil matters of:

divorce;
legal separation;
marriage annulment;
parental responsibility (attributing, exercising, delegating, restricting or terminating), in particular:
custody and access rights;
guardianship, curatorship* and similar institutions;
children in institutional or foster care;
protecting children in relation to their personal property.

Maintenance obligations are excluded from the regulation’s scope.

In a cross-border context, the regulation provides for:

harmonised rules on jurisdiction in matters of divorce, legal separation and marriage annulment;
harmonised rules on jurisdiction in parental-responsibility disputes such as custody, access rights or placement of a child in another EU country;
improved return procedure in cases of child abduction by introducing clear deadlines so that cases can be settled quickly; courts of first and second instance will have to give their decisions within 6 weeks;
promoting mediation;
children being given the opportunity to be heard in the proceedings concerning them;
eliminating the need for an intermediary procedure (‘exequatur’) for decisions on parental responsibility, saving time and expense for individuals;
clearer rules about placing children in another EU country, including the need for consent in all situations, except where a child is to be placed with a parent;
more effective implementation of decisions, introducing possible grounds for suspending or refusing enforcement;
simplified circulation of decisions, authentic instruments* and certain agreements within the EU through rules on recognition and enforcement in other EU countries;
better collaboration between the central authorities of the different EU countries and between the courts, while respecting the rights of the parties and confidentiality.

The best interests of the child remain the primary consideration, in accordance with Article 24 of the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child of 20 November 1989, as implemented by national law and procedure.

The regulation complements the 1980 Hague Convention on the Civil Aspects of International Child Abduction which addresses decisions ordering the return of the child to their country of origin.

KEY TERMS

Civil matters: civil court proceedings and the resulting decisions. For the purposes of the regulation, the term includes all applications, measures or decisions relating to ‘parental responsibility’ within the meaning of this regulation, in accordance with its objectives, and based on established case-law of the Court of Justice of the European Union.

Curatorship: an individual who has been legally appointed to take care of the interests of one who, on account of his youth, or defect of his understanding, or for some other cause, is unable to attend to them himself. It is applied to the guardian of the estate of the ward (i.e. an infant placed by authority of law under the care of a guardian) as distinguished from the guardian of their person.

Authentic instruments: defined in Regulation (EC) No 805/2004 as:
a document which has been formally drawn up or registered as an authentic instrument, and the authenticity of which:
relates to the signature and the content of the instrument; and
has been established by a public authority or other authority empowered for that purpose by the EU country in which it originates;
an arrangement relating to maintenance obligations concluded with administrative authorities or authenticated by them.

MAIN DOCUMENT

Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (Recast) (OJ L 178, 2.7.2019, pp. 1-115)

DOCUMENTS

Successive amendments to Regulation (EC) No 2201/2003 have been incorporated into the original text. This consolidated version is of documentary value only.

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 (OJ L 7, 10.1.2009, pp. 1-79)

See consolidated version.

Enhanced cooperation on matrimonial and registered partnership property issues

Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes

Regulation (EU) 2016/1104 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships

The two regulations determine the rules applicable to the property of married couples or registered partners where the couples have different EU nationalities or where couples own properties in another EU country.

They outline revised rules, agreed by 18 EU countries, on the jurisdiction, the laws that should be applied, and the recognition and enforcement of decisions about matrimonial property regimes* or property consequences* of a registered partnership* arising when marriages or registered partnerships break up, or when one partner dies.

The 18 EU countries participating in the enhanced cooperation are Belgium, Bulgaria, Cyprus, Czechia, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, Netherlands, Austria, Portugal, Slovenia, Finland and Sweden, as authorised by Council Decision (EU) 2016/954. Other countries are free to join at any time after the regulation is adopted. In this respect, Estonia announced its interest, and that it would consider taking part in the cooperation after its adoption.

Scope

Issues about the legal capacity of spouses, the recognition or validity of the marriage, maintenance obligations and inheritance are not covered. The regulations do not change national laws on marriage or registered partnerships, and stipulate that the applicable law applies to all assets regardless of where the assets are located, and will be applied whether or not it is the law of an EU country.

Jurisdiction

The regulations aim to allow citizens to have their cases handled by the courts of the same EU country. Spouses and partners can agree which country’s laws will apply to their matrimonial or registered partnership property, either in:

the country where one or both are ‘habitually resident’;
the country of nationality of either spouse or partner;
the country under whose law the registered partnership was created.
Where the couple do not make such a choice, jurisdiction will be decided in the case of matrimonial property based on (taken in order):

the country where the couple both lived after the marriage ended; or
the couple’s common nationality when the marriage ended; or
the country with which the couple have the closest connection at the time the marriage ended.

If the marriage is not recognised in national law for the purposes of matrimonial property the court can refuse jurisdiction, and similarly for registered partnership. The regulation does not prevent the parties from settling amicably out of court, for instance before a notary, in an EU country of their choice.

The registered partnership regulation sets out the issues pertaining to the property consequences of registered partnerships, particularly the liquidation of assets and the effects of the property consequences of the registered partnership on a legal relationship between a partner and third parties.

Recognition, and enforcement of decisions

The regulations contain rules about the recognition, enforceability and enforcement of decisions similar to those of other EU rules concerning judicial cooperation in civil matters. Grounds for non-recognition of a decision include circumstances where such recognition is obviously contrary to public policy in the EU country in which recognition is sought.

Except for some preparatory administrative matters, the regulations apply from 29 January 2019.

KEY TERMS

Matrimonial property regime: rules concerning the property relationships between spouses and in their relations with third parties, as a result of marriage or its break-up.
Registered partnership: the regime governing the shared life of two people which is provided for in law, the registration of which is mandatory under that law and which fulfils the legal formalities required by that law for its creation.
Property consequences of a registered partnership: rules concerning the property relationships of the partners, between themselves and in their relations with third parties, as a result of the legal relationship created by the registration of the partnership or its break-up.

DOCUMENTS

Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (OJ L 183, 8.7.2016, pp. 1-29)

Successive amendments to Regulation (EU) 2016/1103 have been incorporated in the original text. This consolidated version is of documentary value only.

Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (OJ L 183, 8.7.2016, pp. 30-56)

Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships (OJ L 159, 16.6.2016, pp. 16-18)