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Differing divorce domicile rules ‘not discriminatory’

11 Feb 2022 / family law Print

Differing divorce domicile rules ‘not discriminatory’

The EU’s highest court has ruled that the dismissal by Austria’s courts of an application for divorce made by an Italian national did not amount to discrimination.

The Italian, who had been living in Austria for just over six months, had brought an application before an Austrian court for the dissolution of his marriage with his German spouse, with whom he had previously lived in Ireland.

The application was dismissed at first instance and on appeal, with the courts deciding that the Austrian courts did not have jurisdiction to give a ruling.

Austria’s Supreme Court, however, had referred questions on the issue to the Courts of Justice of the European Union (CJEU) after the Italian had brought an appeal to the court.

‘Real link’ required

The Brussels II bis Regulation on jurisdiction in matrimonial matters requires such an applicant to have resided in the national territory for at least one year immediately before the application is made.

The Italian national, however, had argued that the length of the period of residence necessary should have been only at least six months, as is the case where the applicant is a national of the member state concerned.

He had claimed that to require nationals of other EU countries to have resided there for a longer period amounted to discrimination on grounds of nationality, which is prohibited.

In its judgment yesterday (10 February), the CJEU noted that the relevant regulation sought to ensure that there was a ‘real link’ with the member state whose courts exercised jurisdiction to hear and determine an application for divorce.

‘Degree of foreseeability’

The court said that someone who was a national of an EU state, and returned to that state because his or her marriage had broken down, was not, in principle, in a comparable situation to that of an applicant who did not hold the nationality of that country, but moved there after a marriage breakdown.

The judgment pointed to the institutional, legal, family, and other ties a national of a member state had with his or her country of origin.

This, it added, guaranteed “a degree of foreseeability for the other spouse, to the extent that he or she can expect that an application for divorce could potentially be brought before the courts of that member state”.

The court concluded that it was not inappropriate for such a ‘real link’ to have been taken into consideration when determining the period of actual residence required of the Italian national in Austria.

In Ireland, the Law Reform Commission is examining the recognition of foreign divorces, as part of its fifth programme.

Minister for Justice Helen McEntee said recently that she was awaiting this report before developing proposals for legislation on the recognition of foreign divorces.

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