Brussels IIA is the shorthand name for the European Regulation on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters and in Matters of Parental Responsibility (no 2201/2003).
It came into force on 1 March 2005. Brussels IIA is the EU Regulation that regulates the jurisdiction for divorce proceedings within EU countries.
It currently applies to the following countries:
- Austria
- Belgium
- Bulgaria
- Cyprus
- Czech Republic
- Estonia
- Finland
- France
- Germany
- Greece
- Hungary
- Ireland
- Italy
- Latvia
- Lithuania
- Luxembourg
- Malta
- Netherlands
- Poland
- Portugal
- Romania
- Slovakia
- Slovenia
- Spain
- Sweden
- UK
The EU does not currently include Denmark for almost all family law purposes.
Brussels IIA sets out the circumstances in which a state that has contracted to adhere to the Convention can have jurisdiction for divorce and related financial matters. It therefore standardises the jurisdiction for contracting states within Brussels IIA to have jurisdiction to deal with divorce and financial proceedings (see jurisdiction for a divorce to take place in England).
If a couple has connections with two European countries, it may well be possible that the courts of those two European countries would, at least theoretically, have jurisdiction to deal with that couple’s divorce. Brussels IIA lays down the way in which such a conflict of jurisdictions is dealt with.
The basic position is that the court of the country in which the divorce proceedings are first issued will take precedence and the divorce will go ahead there. It does not matter if the couple have agreed that a particular country should have jurisdiction or that the country in which the divorce proceedings are first issued has a lesser connection with the couple.
If proceedings are then issued in another country that has contracted to Brussels IIA, then (provided the first set of proceedings has been served) the second court has to decline jurisdiction in favour of the other country in whose court proceedings were first issued.
By way of example, take the situation of a German husband and an English wife who marry in 2000. They live in England between 2000 and 2004 and in Germany between 2004 and 2008 when they separate. The wife returns to live in England and, by the time they are considering divorce proceedings, she has lived there for 18 months. The husband remains living in Germany. Under the jurisdiction provisions of Brussels IIA, both the English and the German courts would have jurisdiction to deal with their divorce. If the wife issued divorce proceedings in England first and the husband then tried to do so in Germany, the German court would have to decline jurisdiction and the divorce proceedings would be dealt with in England.