Matrimonial and parental judgments: jurisdiction, recognition and enforcement (Brussels IIa)

 

SUMMARY OF:

Regulation (EC) No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility

WHAT IS THE AIM OF THE REGULATION?

Regulation (EC) No 2201/2003 known as ‘The Brussels IIa Regulation’ is a single legal instrument aiming to help international couples resolve disputes, involving more than one country, over their divorce and the custody of their children.

It sets out:

• rules determining which court is responsible for dealing with matrimonial matters and parental responsibility in disputes involving more than one country;
• rules making it easier to recognise and enforce judgments issued in one European Union (EU) Member State in another;
• a procedure to settle cases in which a parent abducts a child from one Member State and takes them to another.

It does not deal with substantive family law matters. These are the responsibility of individual Member States.

KEY POINTS

The regulation applies to civil law cases involving more than one country that relate to:

• divorce
• legal separation
• the annulment of a marriage
• any aspect of parental responsibility (such as custody and access rights).

One of its main objectives is to uphold children’s right to maintain contact with both parents, even if they are separated or live in different Member States.

The regulation does not apply to cases concerning:

• grounds for divorce or the law applicable in divorce cases
• divorce-related issues such as maintenance
• establishing and challenging paternity
• judgments on adoption and the associated preparatory measures
• annulling or revoking an adoption
• a child’s first and last names
• the independence of children from their parents or guardians
• trusts and inheritance
• measures taken in response to criminal acts committed by children.

Matrimonial matters

There is no general rule on jurisdiction in matrimonial matters. To determine the Member State where the courts have the right to rule on a case, the regulation instead sets out 7 alternative grounds for jurisdiction based on the spouses’ nationality or on where they normally live.

Parental responsibility

It applies to:

• rights of custody and rights of access
• guardianship, curatorship and similar legal arrangements
• the designation and functions of any person or body in charge of the child or the child's property, or which represents or assists the child
• placing the child in a foster family or in institutional care
• measures to protect the child, covering the administration, conservation or use of his or her property.

Such matters generally come under the jurisdiction of the courts in the Member State where the child usually lives. If it is impossible to establish where a child usually lives (as in the case of refugees), the Member State where the child is present automatically assumes jurisdiction.

Child abduction

The regulation also lays down rules to settle cases in which children are unlawfully removed or kept.

The courts of the Member State where the child normally lived immediately before abduction continue to have jurisdiction until the child lives mainly in another Member State.

Recognition

Under the regulation, any Member State must automatically recognise judgments given in another Member State on matrimonial and parental responsibility matters. Recognition can be refused if, for example:

• recognition is clearly contrary to public policy
• the defendant did not receive the document initiating proceedings in time to arrange legal defence (in cases where the judgment was given in the defendant's absence)
• recognition is incompatible with another judgment given between the same parties.

For judgments concerning parental responsibility, recognition can also be refused if:

• the child was not given an opportunity to be heard
• on the request of a person claiming that the judgment infringes his or her parental responsibility, the judgment was issued without this person having been given an opportunity to be heard.

Enforcement

A judgment on the exercise of parental responsibility enforceable in the Member State where it was issued can be enforced in another EU country when it has been declared enforceable there at the request of any interested party. However, no declaration is required for judgments granting rights of access or concerning the return of a child that have been certified by the original judge in accordance with the regulation.

Cooperation between central authorities in parental responsibility cases

Each Member State designates a central authority (or more than one) whose duties include:

• helping parents seeking the return of a child abducted by another parent and taken to another EU country
• promoting information-sharing on national law and procedures;
• helping courts communicate with each other
• helping parents or guardians seeking to recognise and enforce decisions
• seeking to resolve disagreements between parents or guardians through alternative means such as mediation.

Central authorities meet regularly as members of the European Judicial Network in civil and commercial matters.

Existing agreements

As a general rule, this regulation replaces existing conventions on the same matters involving 2 or more Member States. In relations between Member States, it takes precedence over certain multilateral conventions:

• 1961 Hague Convention (law applicable to protection of minors)
• 1967 Luxembourg Convention (recognition of decisions on marriage)
• 1970 Hague Convention (recognition of divorces)
• 1980 European Convention (custody of children)
• 1980 Hague Convention (civil aspects of international child abduction).

With regard to the Hague Convention of 19 October 1996 on parental responsibility and measures for the protection of children (see summary), the regulation is fully applicable if the child normally lives in an EU country.

Exemptions and special rules

Denmark is not a party to the regulation and is therefore not bound by it.

Special rules are applicable to:

• the relations of Finland and Sweden with Denmark, Iceland and Norway as regards the application of the Nordic Marriage Convention of 6 February 1931
• relations between the Holy See and Portugal, Italy, Spain and Malta.

Repeal

The Brussels IIa Regulation has been revised with Regulation (EU) 2019/1111 (Brussels IIa Recast Regulation), which becomes applicable as of 1 August 2022 (see summary).

FROM WHEN DOES THE REGULATION APPLY?

It has applied since 1 March 2005.

BACKGROUND

For more information, see:

• Matrimonial matters and matters of parental responsibility forms (European e-Justice Portal)
• Family law (European Commission)
• Family matters & inheritance (website).

MAIN DOCUMENT

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 (OJ L 338, 23.12.2003, pp. 1–29).

Successive amendments to Regulation (EC) No 2201/2003 have been incorporated in the original text. This consolidated version is of documentary value only.

RELATED DOCUMENTS

Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 189, 22.7.2010, pp. 12–13).

Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 343, 29.12.2010, pp. 10–16).

Commission Decision 2012/714/EU of 21 November 2012 confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 323, 22.11.2012, pp. 18–19).

Commission Decision 2014/39/EU of 27 January 2014 confirming the participation of Greece in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 23, 28.1.2014, pp. 41–42).

last update 03.09.2021