Cross-border divorce: jurisdiction and procedure

Chapter III of Regulation Brussels II bis deals with the recognition and enforcement of judgments. According to Article 59 of the Regulation it supersedes conventions which have been concluded between two or more member states and relate to matters governed by the Regulation (see further Chapter V and Question D. 3 of the national sections).

A judgment on divorce, legal separation or annulment rendered in one member state shall be recognised in all other member states without any special procedure being required (Article 21.1). This particularly means:

• That no special procedure shall be required for updating the civil-status records of a member state on the basis of a final judgment relating to divorce, legal separation or marriage annulment given in another member state (Article 21.2). The authorities competent to update the civil-status records will decide whether the foreign judgment can be recognised under the rules of the Regulation.
• Where the recognition of a judgment is raised as an incidental question in a court of a member state, that court may determine that issue (Article 21.4).

Any interested party may, however, apply for a decision that the judgment be or not be recognised. The procedure follows the rules established in Section 2 of Chapter III in relation to the enforcement of decisions in matters of parental responsibility. The authorities competent for this procedure have been communicated by the member states to the Commission and this information has been published in the Official Journal. Local jurisdiction is determined by the internal law of the member state in which proceedings for recognition or non-recognition are brought. The European Judicial Atlas in civil and commercial matters provides a tool in order to locate the specific court that is competent in a particular case.

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Judgments on matrimonial matters rendered in one member state shall in principle be recognized in the other member states. The regulation clearly establishes that under no circumstances may a judgment be reviewed as to its substance (Article 26) and that the recognition of a judgment may not be refused because the law of the member state in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts (Article 25).

According to Article 24 the jurisdiction of the court of the member state of origin of the decision, whose recognition is sought, may not be reviewed.

Article 22 contains the grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment. Recognition of a decision on matrimonial matters may be refused:

• if such recognition is manifestly contrary to the public policy of the member state in which recognition is sought;
• where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defensce unless it is determined that the respondent has accepted the judgment unequivocally;
• if it is irreconcilable with a judgment given in proceedings between the same parties in the member state in which recognition is sought; or
• if it is irreconcilable with an earlier judgment given in another member state or in a non-member state between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the member state in which recognition is sought.

A party seeking recognition must produce (Article 37):

• a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
• a certificate issued using the standard form set out in Annex I of the Regulation. This certificate is granted by the competent court or authority of the member state of origin of the decision whose recognition is sought;
• in the case of a judgment given in default the original or certified true copy of the document which establishes that the defaulting party was served with the document instituting the proceedings or with an equivalent document; or any document indicating that the defendant has accepted the judgment unequivocally.

If the documents referred to under (b) and (c) are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production (Article 38.1).

Documents only need to be translated if the requested authority so requires. In such circumstances the translation shall be certified by a person qualified to do so in one of the member states (Article 38.2).

No legalisation or other similar formality shall be required in respect of the documents (Article 52).