Johan Meeusen
University of Antwerp

Responding to a preliminary question from the German Bundesgerichtshof, the Court of Justice of the EU ruled in its BM judgment of 6 July 2023 (case C-462/22; eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62022CJ0462) on the precise interpretation of the sixth indent of Article 3(1)(a) of the Brussels IIa Regulation (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), and of the jurisdictional criterion of (habitual) residence more specifically.

Pursuant to Article 3(1)(a) Brussels IIa, in matters of divorce, jurisdiction shall lie with the courts of the Member State
(a) in whose territory:
– the spouses are habitually resident, or
– the spouses were last habitually resident, insofar as one of 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.

This provision has been reproduced, mutatis mutandis, in the new Brussels IIb regulation that replaced Brussels IIa as of 1 August 2022 (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)).

The Court of Justice recently clarified the meaning of “habitual residence” in Article 3(1)(a) of the Brussels IIa Regulation. According to the Court, this concept is characterised, in principle, by two factors: first, the intention of the person concerned to establish the habitual centre of his or her interests in a particular place and, second, a presence which is sufficiently stable in the Member State concerned. A spouse may have, at a given time, only one habitual residence for the purposes of that provision (judgments of 25 November 2021, C-289/20, IB, paragraphs 51 and 57, and of 1 August 2022, C-501/20, MPA, paragraph 44).

In BM, the Court examined another issue related to the jurisdictional criterion of “habitual residence”.

BM, a German national, and LO, a Polish national, married in Poland in 2000 and lived there with their children until at least June 2012. On 27 October 2013, BM brought divorce proceedings before the Amtsgericht Hamm, in Germany, claiming that he had left his marital home in June 2012 and had since then settled at his parents’ home in his home town in Germany. However, his wife LO claimed that the German courts lacked international jurisdiction, essentially on the ground that, after leaving the marital home, BM had retained a habitual residence in Poland for most of 2013. The Amtsgericht Hamm upheld LO’s plea of lack of jurisdiction and dismissed BM’s application for divorce as inadmissible.

This judgment was upheld on appeal by the Oberlandesgericht Hamm. It held that although BM had acquired habitual residence in Germany on the date on which the application for divorce was lodged, he had not shown that he had established such habitual residence in Germany throughout the six months preceding that date, which would be contrary to the requirements of Article 3(1)(a), sixth indent, Brussels IIa.

BM appealed to the Bundesgerichtshof, which wondered whether, under the said provision of the Brussels IIa Regulation, the applicant must prove habitual residence in the Member State of the court seised from the start date of the six-month period. Or is mere de facto residence sufficient, provided that the latter becomes habitual at the latest on the date of lodging the application for divorce? The Bundesgerichtshof took the view that the first interpretation was the correct one, but nevertheless submitted a preliminary question to the Court of Justice as the interpretation was a matter of dispute, in particular in German-language legal literature, and the issue had not yet been settled by the case-law of the Court of Justice nor could the correct interpretation be clearly deduced from it.

Although the Bundesgerichtshof is not just any court and there is indeed doctrinal debate on the issue mentioned, the Court unfortunately decided the case without an Opinion of an Advocate General. Especially for disputed questions of interpretation, such an Opinion usually allows for a broader insight into the case and the relevant points of debate. Not long before, the Court had not used an Advocate General’s Opinion either when, also at the request of a Member State’s highest court, it had to rule on another controversial issue regarding the Brussels IIa Regulation (see The OE/VY case: the CJEU takes a pragmatic approach to the nationality privilege of Article 3(1)(a) Brussels IIa Regulation (Johan Meeusen, comment on ECJ, 10 February 2022, C-522/20) – GEDIP (gedip-egpil.eu)).

That the spouse wishing to rely on the ground of jurisdiction provided for in Article 3(1)(a), sixth indent, Brussels IIa must necessarily show that he or she is habitually resident in the territory of the Member State of which he or she is a national at the time of lodging his or her application for divorce, is not disputed (paragraph 24). What is at issue in this case is whether the applicant must simply show that he or she has established his or her residence in the territory of that Member State, provided that, during the minimum period of six months immediately preceding the application for divorce, this domicile has become a habitual residence, or whether this applicant must prove habitual residence from the beginning and throughout that minimum period of six months immediately preceding his or her application (paragraph 25).

A literal interpretation would probably point to that first meaning. However, the Court takes a different path, based on an autonomous and uniform interpretation that takes into account the wording and the context of the provision in question -the other parts of which also refer to “habitual residence”- and the objectives of the Brussels IIa Regulation (paragraphs 26-28).

Relying in part on various language versions of the Regulation, the Court points out that Article 3(1)(a) Brussels IIa seeks to standardise within the Union the criteria for attributing international jurisdiction in matrimonial matters and that those criteria are all based on the concept of “habitual residence.” It therefore sees no need to distinguish between the concepts of “residence” and “habitual residence” in that particular context (paragraphs 29-31).

The Court also points out that its interpretation allows reconciling legal certainty with the mobility of persons within the European Union. Indeed, the possibility of obtaining the dissolution of matrimonial ties is preserved for the applicant, without imposing a disproportionate burden on him or her and without unduly favouring that applicant who, after all, already benefits from a forum actoris (paragraphs 32-36).

These considerations lead the Court not to opt for a strictly literal interpretation of Article 3(1)(a), sixth indent, Brussels IIa. On the contrary, according to the Court’s purposive and contextual approach, the jurisdictional criterion on which that provision is based, requires that the spouse who intends to rely on that provision must necessarily prove that he or she has been habitually resident in the Member State of the court seised from the beginning of the minimum period of six months referred to in that provision (paragraph 37). The Court thus opts for a thoughtful, well-grounded and convincing interpretation of the Brussels IIa Regulation. Yet, its approach is not self-evident: the European Commission, for example, appeared to accept the other, literal interpretation of the provision in question (paragraph 27). It is therefore unfortunate that once again it was decided to answer an important preliminary question on the interpretation of the Brussels IIa regulation without an Advocate General’s Opinion.