Jurisdiction in matrimonial matters
Regulation 2201/2003 sets out rules of jurisdiction that determine the member state in which proceedings on divorce, legal separation or annulment can be initiated. These rules are only about international jurisdiction: the specific court or authority within a member state with competence in a given case is determined by national rules of procedure.
Rules of international jurisdiction that exist under the law of the member states are in principle not applicable if one of the spouses is habitually resident in a Member State or is a national of a member state or in the case of Ireland and the United Kingdom is domiciled therein (Article 6).
By way of exception national rules on international jurisdiction however come into play if there are no Courts in any member state with jurisdiction on the matter under the residual jurisdiction rule of Article 7.(see Question A. 2 of the national sections). This rule was clearly established by the ECJ in the Sundelind López case (Case C-68/07).
Article 3 of Regulation Brussels II bis establishes seven grounds that grant jurisdiction to the courts of member states. These grounds are not placed in any hierarchical order, but operate in an alternate manner. A court must of its own motion declare that it has no jurisdiction, if it is seized in a case over which it has no jurisdiction under the Regulation and over which a court of another member state has jurisdiction according to the Regulation (Article 17). If there is no court with jurisdiction under the Regulation in any member state, the requested court might derive jurisdiction based on its own national rules of international civil procedure (residual jurisdiction: Article 7, see also Question A. 2 of the national sections).
The fact that there are so many available grounds of jurisdiction may result in more than one member state having jurisdiction over the same case. Once different proceedings concerning the same marriage have been instituted in different member states, the lis pendens rule established in Article 19.1 applies. The lis pendens rule also operates if the actions in the first and the second procedure differ and one of the procedures is about legal separation and the other about divorce or annulment.
The provision on lis pendens applies the prior tempore rule. The court second seized must stay the proceedings until the court first seized decides whether it has jurisdiction. If this is the case, the court first seized will hear the case and the court second seized will decline jurisdiction in favour of the court first seized. In that case, the party who brought the relevant action before the court second seized may bring that action before the court first seized. Article 16 determines when a court is deemed to be seized.
The grounds of jurisdiction in Article 3 can be classified according to the main factor that is used as a ground of jurisdiction, habitual residence or nationality.
