Divorce with cross-border elements

The number of cross-border marriages is skyrocketing today. Consequently, as family law specialists at Bannister Lawyers, we are frequently confronted with divorce proceedings in which the spouses are of different nationalities and/or live in different countries, for example, because one of the spouses works abroad or moved after the relationship broke up. Specifically, two questions arise:
1. which court has jurisdiction to pronounce my divorce?
And 2. What law applies to my divorce?

Our family law attorneys are happy to share their insights and provide initial answers to frequently asked questions.

Which court has jurisdiction to issue my divorce: international jurisdiction

In cross-border divorce proceedings, concerns often arise as to "where" the divorce proceedings will take place. Of course, it is the desire of each party to initiate divorce proceedings at the nearest court.

The rules of international competence determine the country whose courts may grant divorce. These are laid down in a European regulation, the Brussels II bis Regulation, and takes precedence over Belgian law. Specifically, the Belgian court has jurisdiction to pronounce your divorce in the following cases (Article 3 Brussels II bis Regulation):

You file a joint petition and one of the spouses has his or her habitual residence in Belgium;
If you both have habitual residence in Belgium;
If the last habitual residence was in Belgium and either of them still resides in Belgium;
If the defendant has his or her habitual residence in Belgium;
If the applicant has had his or her habitual residence in Belgium for at least 1 year;
If the applicant has had his or her habitual residence in Belgium for at least 6 months and is also Belgian, or;
If both of you are Belgian.

If the Belgian court cannot grant your divorce on the basis of these connecting factors, it will examine whether another court in the European Union has jurisdiction. If no other European court has jurisdiction, the Belgian judge can invoke Belgian law. Concretely, he can declare himself competent on the basis of the so-called "emergency forum" from article 11 WIPR. To do so, you must prove that you have close ties with Belgium and that divorce proceedings abroad are impossible or unreasonable.

An example:

A Belgian woman married an American woman in Belgium in 2010. Their last joint residence is in Belgium. After the relationship breaks down, the Belgian woman moves to France and the American woman moves to America. Based on the above-mentioned connecting factors from the European Regulation, the Belgian court does not have jurisdiction to pronounce the divorce. Based on Belgian law, the judge can invoke the emergency forum because divorce was not possible in France or America. These countries did not recognize same-sex marriage.

What law applies to my divorce?

The applicable law to your divorce proceedings determines the grounds and conditions for divorce. The applicable law to the consequences of your divorce differs depending on the consequences sought. For example, there are separate rules of applicable law for property consequences (Matrimonial Property Ordinance) and any maintenance payments (Maintenance Ordinance).

The law applicable to your divorce is also set forth in a European Regulation, the Rome III Regulation.

In principle, you and your spouse can choose which law applies to your divorce. You can make this choice up to the moment your divorce action is filed. You have a choice between (Article 5 Rome III Regulation):

The right of your habitual residence at the time of choice;
The right of your last habitual residence if one of you is still residing there at the time of choice;
The right of nationality of one of you at the time of choice; or
The law of the forum, which is the law of the country where the competent court is located.

If you did not choose the applicable law yourself, the European Regulation determines the applicable law as follows:

The law of your habitual residence;
If you no longer have your habitual residence in the same country, the law of your last habitual residence applies if you resided there together less than a year ago and if one of you still resides there;
If not, the law of your common nationality will apply;
If you also do not have a common nationality, the competent court will apply the law of its own country.

An example

A Belgian man and a Greek woman file for divorce before the court in Antwerp. Because they lived together in Antwerp, the divorce can be pronounced in Belgium. The husband and wife themselves did not choose the applicable law for the divorce. The conditions and grounds for the divorce in this case will be determined by Belgian law because the husband and wife have their habitual residence in Belgium.

Do you have questions or need further advice? We are ready to answer your questions and guide you further. Contact us here.