If an international marriage is on the verge of ending and is to be divorced, the question arises as to which national law the divorce should follow.
According to the Brussels IIa Regulation for matrimonial matters, the application for divorce can only be filed in an EU member state where the applicant has lived for at least one year before filing the application, explains the commercial law firm MTR Rechtsanwälte. The ECJ confirmed this with a judgment on February 10, 2022 (Case No.: C-522/20).
In the present case, it was about the divorce of a marriage between an Italian man and his German wife. The couple had lived in Ireland. After the separation, the Italian husband moved to Austria and lived there for just over half a year. He then filed the divorce application in an Austrian court. However, it felt it was not competent and dismissed the application.
The Italian was not satisfied with this. He argued that the required length of residence should only be at least six months, as stipulated in the regulation, if the affected person holds the nationality of the EU member state where he applies. If citizens of other countries are required to have a longer residence period, this would constitute unlawful discrimination on grounds of nationality.
The argument did not seem far-fetched to the Supreme Court of Austria. To clarify this issue, it referred to the ECJ. The ECJ clarified that there is no discrimination when a longer period of residence is required.
Brussels IIa aims to ensure that a genuine connection exists to the member state whose courts decide on the divorce of a marriage. A national who leaves the country due to a marital crisis, in which the couple has their habitual residence and returns to their home country, necessarily maintains institutional, legal, as well as mostly cultural, linguistic, social, family, or property-related ties to this country. Such ties could contribute to the necessary genuine connection to the member state. This is not comparable to an applicant who does not have these ties, according to the ECJ.
In international marriages, the consequences should always be considered, and if necessary, a marriage contract should be concluded. Lawyers experienced in international family law can provide advice.
