Tuesday 21 October 2014

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.].