Habitual Residence under the Brussels II bis Regulation
The Thessaloniki CoA issued recently a highly interesting judgment on the interpretation of habitual residence pursuant to Art. 3 Brussels II bis Regulation. The ruling enriches the Greek case law with new elements on the proper implementation of the EC Regulation in divorce proceedings, and demonstrates the awareness of Greek judges with regard to EC instruments in the field of judicial cooperation in civil matters.
THE FACTS: The parties in dispute are an Austrian/Serbian
husband, and an Austrian/Hungarian wife. They married in Nevada, USA; a
matrimonial celebration of the wedding according to the rules of the
Roman-Catholic church followed in the Apostolic Vicariate of Thessaloniki,
Greece. Due to the husband’s professional commitments, the family was living
partly in Zurich and Thessaloniki for nearly four years (1994-1997). In 1998,
the couple chose Thessaloniki as their domicile, evidenced by the following:
They registered their children in the Deutsche Schule of Thessaloniki, and they
rented an apartment in the outskirts of the town. In 2009 they moved to Vienna,
where they stayed until May 2012, when their marriage was irretrievably broken.
As a consequence, the wife moved to Budapest, where she spent the whole summer.
Upon her return to Vienna, she sought for assistance by an institution called ‘House
for the protection of women’, in order to find temporary shelter away from her
husband. The latter filed an action for divorce on August 20, 2012, before the
Chalkidiki 1st Instance Court, Greece. On the other side, the wife filed
a request for an interim order before Austrian courts in September 2012. During
the hearing of the proceedings the husband testified that ‘it is true that I live for three years now with the petitioner in
Vienna; however, I often travel abroad for professional reasons. Furthermore,
we used to live together for three months each year in our summer house in
Greece, which is situated outside the town of Neos Marmaras’.
The Chalkidiki 1st
Instance Court dismissed the action, declining its international jurisdiction
to hear the case. The husband appealed.
THE RULING: On the basis of the above facts, the
Thessaloniki CoA dismissed the appeal. It underlined
the importance of the testimony made by the appellant before the Austrian
court, which equals to a confession that the habitual residence of the couple from
2009 onwards was Vienna, and before that Thessaloniki. However, the summer
house in Neos Marmaras had never been their habitual residence, but solely the
place where they used to spend their summer vacations. The CoA also emphasized
the fact that the appellant’s action for divorce referred to both spouses as
residents of Neos Marmaras. Nevertheless, the document instituting the proceedings
additionally mentioned that the respondent was temporarily a resident of
Vienna. It was therefore clearly proven that the appellee was never a resident
of Neos Marmaras. At the same time, the appellant failed to convince the court
that he at least was a resident of the town aforementioned, so as to establish
the court’s international jurisdiction pursuant to Art. 3 Para. 1 a, point 5
Brussels II bis Regulation [‘the applicant is
habitually resident if he or she resided there for at least a year immediately
before the application was made,].
The fact that he refers to himself as a resident of Neos Marmaras is not
relevant, because the issue at stake is not whether he wishes to locate his
residence there, but rather whether this town is actually his habitual
residence for the purposes of the Brussels II bis Regulation. However the
latter has not been proven in the course of the proceedings.
For the above reasons, the Thessaloniki CoA dismissed
the appeal on the grounds of Art. 17 Brussels II bis Regulation.
COMMENTS: This is the third CoA ruling declining its
international jurisdiction under the Brussels II bis Regulation in Greece. It
was again the Thessaloniki CoA back in 2005, which issued its landmark judgment
on the interpretation of habitual residence pursuant to the predecessor of
Regulation 2201/2003 (Brussels II Regulation Nr. 1347/2000). In that case, the
spouses were a German and a Greek working in the European Commission. The Greek
wife initiated divorce proceedings before the Thessaloniki courts, which
dismissed the action both in 1st and 2nd instance on the grounds
of lacking international jurisdiction of Greek courts [Thessaloniki CoA
1689/2005, Armenopoulos 2005, p. 1782 et seq., Thessaloniki 1st
Instance Court 14135/2004, Digesta 2004, p. 484 et seq.]. A ruling of the
Athens CoA followed: The Greek husband attempted to establish jurisdiction of
the Athens courts for a divorce action against his Greek-French wife. He failed
however to convince the court that he or his wife were indeed residents of
Athens; on the contrary, it was demonstrated that he never changed his habitual
residence in Luxemburg [Athens CoA 2712/2011, Hellenic Justice 2012, p. 799 et
seq.]. Finally, in yet another similar case, the Athens 1st Instance
Court declined its jurisdiction with respect to a divorce action of a
Greek-Swiss husband against his Swedish-Swiss wife, due to the plaintiff’s
failure to demonstrate at least one of the bases for jurisdiction pursuant to
Art. 3 Brussels II bis Regulation in Greece [Athens 1st Instance
Court (chamber) Nr. 1630/2013, Civil Procedure Review 2013, p. 394 et seq.].
Labels: Brussels II bis Regulation
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