JURE summary

JURE summary

Pursuant to Article 8(a) of Regulation (EU) No 1259/2010 (¹) , which takes precedence over subparagraph (c) of the same article, Swiss law governs the dissolution of a marriage when both spouses are habitually resident in Switzerland, being immaterial that they both be Italian nationals.

In an action for parental responsibility over a child habitually resident in Switzerland, Italian courts have jurisdiction neither on Article 8 of the new Brussels II Regulation (²) , because the child does not reside in a European Union Member State, nor on Article 12 (prorogation of jurisdiction) of the same Regulation when the jurisdiction of Italian courts has been contested by the mother. Moreover, Article 37 of Law No 218 of 31 May 1995 – pursuant to which Italian courts have jurisdiction in matters of parentage and relationships between parents and children (in addition to the instances referred to in Articles 3 and 9 of that Law) where one of the parents or the child is an Italian national or resides in Italy – is not applicable, since Article 42 of Law No 218/1995 (which is without prejudice to the applicability of the Hague Convention of 5 October 1961, now replaced by the Hague Convention of 19 October 1996) takes precedence over Article 37 of the same Law.

Pursuant to the 1996 Hague Convention, Italian courts do not have jurisdiction over that action, since Article 5 of the Convention provides that jurisdiction is to lie with the judicial authorities of the Contracting State of the child’s habitual residence, in this case the Swiss court, and because, having regard to the mother’s objection to Italian jurisdiction, the condition laid down in Article 10 of the Convention – namely that the parents and any other person having parental responsibility for the child accept jurisdiction – must be deemed as not having been met.

Pursuant to Article 5(2)(c) of the New Lugano Convention (³) , a person domiciled in a Contracting State may be sued for maintenance in another Contracting State whose courts, pursuant to national law, have jurisdiction over parental responsibility, provided the maintenance claim is ancillary to that on parental responsibility. Consequently, in the case at hand, Italian courts also lack jurisdiction over the child maintenance claim, since jurisdiction over such claim lies with the Swiss court, which has jurisdiction over the principal question of parental responsibility.

(¹) 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.

(²) 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.

(³) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.