If an international marriage is nearing its end and is to be divorced, the question arises as to which national law the divorce should be carried out under.
According to the Brussels IIa Regulation on 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 prior to filing the application, explains the commercial law firm MTR Rechtsanwälte. The ECJ confirmed this with its ruling on February 10, 2022 (Case No.: C-522/20).
The case at hand involved 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 had lived there for just over six months. He then filed the divorce application with an Austrian court, which did not feel competent and rejected the application.
The Italian man was not satisfied with this. He argued that the required period of residence should be at least six months, as provided by the regulation, when the person concerned holds the nationality of the EU member state in which the application is filed. If citizens of other countries are required to have a longer period of residence, this constitutes impermissible discrimination on the grounds of nationality.
The argument did not seem far-fetched to the Supreme Court of Austria. To clarify this issue, it called upon the ECJ. The ECJ clarified that no discrimination exists if a longer period of residence is required.
Brussels IIa aims to ensure that a real connection exists with the member state whose courts decide on the divorce of a marriage. A national who leaves the country due to a marriage crisis, where the married couple has their habitual residence and returns to his home country, necessarily maintains institutional, legal, as well as mostly cultural, linguistic, social, family, or property connections to that country. Such ties could contribute to the required real connection with 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 prenuptial agreement should be concluded. Lawyers experienced in international family law provide advice.
