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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, ... - page 1 / 12

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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, Advocate

“But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforth to be part of out law.” Bulmer v Bollinger [1974] 3 WLR 202, per Denning MR.

The European Union has turned its sights to family law. Brussels now tells us where we can raise proceedings in family cases. Council Regulation (EC) No 1347/2000 of 29 May 2000 (known as “Brussels II”) applied to matrimonial matters and some children’s cases. It came into force on 1 March 2001. That Regulation has in turn been superseded by Council Regulation (EC) No 2201/2003 of 27 November 2003 (“Brussels II bis”). The new Regulation extends to children’s cases. The Regulation is directly applicable in Scotland, and the rest of the United Kingdom. It also applies in Belgium, Cyprus, Czech Republic, Germany, Greece, Spain, Estonia, France, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Austria, Poland, Portugal, Slovak Republic, Slovenia, Finland and Sweden, but not Denmark.

Jurisdiction in divorce The rules are now found in Article 3 of Brussels II bis. The same rules apply to actions relating to “legal separation” and “marriage annulment”. A court in a member state has jurisdiction to entertain an action for divorce, separation, or nullity where:

  • Both spouses are habitually resident there;

  • Both spouses were last habitually resident, and one still resides there;

  • The defender is habitually resident there;

  • The pursuer is habitually resident, and either has resided there for at least a year preceding the application or is domiciled (or a national) there and has resided there for at least six months preceding the application;

  • Both spouses are domiciled (or nationals).

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