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Determination of habitual residence of a spouse under Brussels II bis Regulation

Alicja Slowik , 20 décembre 2021

In the recent case IB (C-289/20) the Court of Justice of the EU (CJEU) stated that for the purposes of applying jurisdictional rules on the matters relating to divorce, a spouse may have only one habitual residence, even in situations when he or she divides his or her time between two Member States.

In the case at hand, the applicant IB, a French national married to an Irish citizen, filed an application for divorce before a French Regional Court. The latter declared that it lacked territorial jurisdiction to rule on the issue as it was not clearly established that the habitual residence of the applicant was situated in France. Mr IB argued that in the past two years he had worked in France on a stable and permanent basis: this fact would indicate that his habitual residence was located in this country. At the same time, he continued to travel to his family home in Ireland. Therefore, the applicant had significant ties with both France and Ireland. Under these circumstances, the national judge wondered whether a spouse might be habitually resident in two Member States for the purposes of determining jurisdiction to hear a divorce application. The French Court of Appeal decided to refer the matter to the Court of Justice asking it for guidance on the interpretation of Article 3 of Regulation 2201/2003 (the Brussels II bis Regulation/Regulation).

Article 3 of Brussels II bis Regulation provides for “objective, alternative and exclusive” criteria for jurisdiction on matters relating to divorce (point 32 of the CJEU’s judgement). In particular, it confers jurisdiction to the courts of the Member State where “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”. The Court was called to determine whether a spouse could have more than one habitual residence at a given time for the purposes of this provision.

The Court recalled that, in the absence of any definition of habitual residence in the Regulation, this concept must be given an “autonomous and uniform interpretation” (point 39). Following a literal interpretation, the Court pointed out that the Regulation never refers to the concept of “habitual residence” in the plural. It then noticed that the possibility for a person to have his or her habitual residence simultaneously in more than one Member State would clearly go against legal certainty and predictability of jurisdictional rules. Subsequently, relying on its case law on the application of the provisions of Brussels II bis Regulation on the parental responsibility (case HR, C-512/17) the Court formulated guidelines on the determination of the habitual residence of a spouse. It stated that “the concept of ‘habitual residence’ is characterised, in principle, by two factors [...] the intention of the person concerned to establish the habitual centre of his or her interests in a particular place and [...] a presence which is sufficiently stable in the Member State concerned” (point 58). Emphasising that it is ultimately for the national judge to rule on the facts of the case, the Court noticed that several elements, such as the professional activity and the integration of the applicant within the French society, indicated that he has effectively transferred his habitual residence to France.

By excluding the possibility for a person to be habitually resident in more than one Member State, the CJEU intended to promote predictability of jurisdictional rules. The contrary solution would probably jeopardise the balance established by Brussels II bis Regulation between the free movement of persons within the EU and the legal certainty to the detriment of the latter. If the applicant living in two Member States had a possibility to choose freely between the jurisdictions of both countries, the defendant would not be able to know in advance in which court he could be sued. Nonetheless, one must admit that the reasoning proposed by the Court in IB suited very well to the particular facts of the case given that the applicant’s ties with France seemed at first glance stronger than his bonds with Ireland (at least within a period immediately preceding the application for divorce). In a more and more globalised world, one can easily imagine a more complex scenario in which one person pursues his or her professional and private activities in two countries and spends the same amount of time in each of them. In such a situation, it would be very difficult for a judge to determine one single habitual residence of a spouse.

The present judgement constitutes an additional attempt to shed light on the concept of habitual residence, a key-notion in EU Private International Law. Over the years, the concept has given birth to a substantial body of case law. For the time being, there exists no universal, be it judge-made, definition of the notion of habitual residence common to all EU instruments on judicial cooperation. The solution put forward in the present case will not necessarily affect the understanding of the notion in other contexts (relating for instance to conflict of laws situations in civil and commercial matters). It will remain however relevant for the purposes of the application of the instrument which will replace Brussels II bis Regulation (Regulation 2019/1111)[1] given that the recast version does not modify the jurisdictional rules on divorce-related matters.

Alicja Słowik, Determination of habitual residence of a spouse under Brussels II bis Regulation, actualité du CEJE n° 41/2021, disponible sur www.ceje.ch


[1]The instruments will apply to divorce proceedings instituted on or after 1 August 2022.