On 25 November 2021, the Court of Justice of the European Union (hereinafter “the Court”, “CJEU”) has issued a judgement in case IB (C-289/20), in which the Court was asked whether a spouse resident in two Member States could have a habitual residence in both Member States and, if so, whether that meant that the courts of those two Member States have jurisdiction to rule on the divorce. These questions were raised by Mr IB, a French national, and Mrs FA, an Irish national who has three adult children and who have decided to divorce in 2018. Since 1999, the applicant IB lives with his wife and children in Ireland, but for several years IB has been returning to France every week for work, where he has set up his center of professional interest.

Following the judgment of the Tribunal de grande instance de Paris (Court of First Instance, Paris) declaring that it had no jurisdiction to hear the divorce proceedings, the applicant, IB, appealed to the Cour d’appel de Paris (Court of Appeal, Paris). The Court of Appeal stayed the proceedings and referred the matter to the CJEU, essentially asking which courts, Irish or French, or possibly both, had jurisdiction to hear the divorce proceedings. The CJEU was also asked how the criterion of habitual residence was to be interpreted in that context, in accordance with the provisions on habitual residence enshrined in Article 3(1)(a) of the Brussels IIa Regulation.

The CJEU clarified in its judgment that although a spouse may reside in two Member States, only the place of residence in the Member State where the main center of interests of the person is concentrated can be considered as habitual residence. The CJEU also noted that, where a person has two places of residence in two Member States, two criteria must be evaluated: (a) the intention of the person concerned to establish the habitual centre of his or her interests in a particular place (b) a presence which is sufficiently stable in the Member State concerned. 

The Court observed, inter alia, that neither Article 3(1)(a) of the Brussels IIa Regulation nor any other provisions of that regulation provide that a person may, at the same time, have several habitual residences or be habitually resident in several places. Such a situation would, in particular, be liable to undermine legal certainty, by making it more difficult to determine in advance which courts have jurisdiction to rule on the divorce and by making it more difficult for the court seised to determine whether it has jurisdiction.

The CJEU concluded that, although a spouse may have several residences at the same time, he or she may have, at a given time, only one habitual residence within the meaning of Article 3(1)(a) of the Brussels IIa Regulation. In more complicated situations, where a spouse divides his or her time between two Member States, only the courts of the Member State in which that habitual residence is situated have jurisdiction to rule on the application for dissolution of the matrimonial ties.

Arnoldas Rutkauskas

Law Institute, Lithuanian Centre for Social Sciences

di Arnoldas Rutkauskas

3 December 2021