Application of rules on jurisdiction of Brussels IIbis

Application of rules on jurisdiction of Brussels IIbis Regulation in matrimonial matters and matters of parental responsibility in Latvian courts Mg. iur. Kucina Irēna, Lecturer of the University of Latvia, Law Faculty Mg. iur. Zikmane Anita, Director of the Civil Law Department, the Ministry of Justice 9 -10 July, 2009

I Application of rules on jurisdiction of Brussels IIbis Regulation in matrimonial matters in Latvian courts Section 1 of Chapter II of Brussels IIbis Regulation deals only with crossborder jurisdiction in matrimonial matters and does not deal with other issues which could be relevant settling a dispute on divorce, for example, property consequences of the marriage

I Application of rules on jurisdiction of Brussels IIbis Regulation in matrimonial matters in Latvian courts 1. 1. Application of Article 3 of Brussels IIbis Regulation in Latvian courts Article 3 of Brussels IIbis Regulation provides alternative grounds on cross-border jurisdiction. More recently applications on divorce in Latvian courts are made on the following grounds: the applicant is habitually resident of Latvia and resides there for at least a year immediately before the application was made or the applicant is habitually resident of Latvia and resides there for at least six months immediately before the application was made and is a national of the Republic of Latvia. Often applicants make joint application on divorce, if one of them is habitually resident of Latvia.

I Application of rules on jurisdiction of Brussels IIbis Regulation in matrimonial matters in Latvian courts 1. 2. Application of Article 3 of Brussels IIbis Regulation in Latvian courts How habitual residence of a spouse/spouses is determined in Latvian courts and what are the relevant problems? Article 7 of the Introduction to Civil Law? Law on declaration of residence? Considering all the relevant circumstances of each case?

I Application of rules on jurisdiction of Brussels IIbis Regulation in matrimonial matters in Latvian courts 1. 2. Application of Article 3 of Brussels IIbis Regulation in Latvian courts: Possible solutions: agree on applicant’s view that a habitual If upon receipt of an application a court residence of a has doubts about habitual residence of a spouse/spouses is in person? Latvia a decision regarding leaving an application not proceeded with should be taken determining a time limit for rectifying the deficiencies If upon receipt of an application a court does not have doubts about habitual residence of a person or the deficiencies are rectified about it?

I Application of rules on jurisdiction of Brussels IIbis Regulation in matrimonial matters in Latvian courts 1. 2. Application of Article 3 of Brussels IIbis Regulation in Latvian courts Possible solutions: To commence proceedings and wait for the opinion of a defendant about habitual residence of a person. If defendant does not contest question on habitual residence of a person, a court should not examine question on habitual residence in order not to violate principle of adversary proceedings. However, if defendant contests question on habitual residence of a person, a court should examine question on habitual residence. If proceedings are commenced, but a court determines that a habitual residence of a person is abroad and it has no jurisdiction to settle a dispute on divorce based on grounds on jurisdiction of Brussels IIbis Regulation? Article 17 of Brussels IIbis Regulation should be applied

I Application of rules on jurisdiction of Brussels IIbis Regulation in matrimonial matters in Latvian courts 1. 3. Application of Article 3 of Brussels IIbis Regulation in Latvian courts !!! Grounds on jurisdiction of Brussels IIbis Regulation in matrimonial matters have international or cross-border nature, however territorial jurisdiction should be determined in accordance with national procedural regulation of a respective state and in case of Latvia it is the Civil Procedure Law. Latvian courts their jurisdiction base only on the provisions of Article 3 of Brussels IIbis Regulation, but do not apply the Civil Procedure Law in order to determine territorial jurisdiction.

II Application of rules on jurisdiction of Brussels IIbis Regulation in matters of parental responsibility in Latvian courts Section 2 of Chapter II of Brussels IIbis Regulation deals with cross-border jurisdiction in matters of parental responsibility and provides different grounds on jurisdiction in these matters

II Application of rules on jurisdiction of Brussels IIbis Regulation in matters of parental responsibility in Latvian courts 2. 1. Application of Article 8 of Brussels IIbis Regulation in Latvian courts The first main issue on application of Article 8 is that like in

II Application of rules on jurisdiction of Brussels IIbis Regulation in matters of parental responsibility in Latvian courts 2. 2. Application of Article 8 of Brussels IIbis Regulation in Latvian courts How a habitual residence of a child is determiend in Latvia? - the definition does not exist neither in Brussels IIbis Regulation, neither in Latvian national law. - Latvian courts in determining a habitual residence of a child consider whether a child has substantial connection with Latvia, by taking those criteria provided in Article 12(3) or 15(3) of Brussels IIbis Regulation. - since 2 April, 2009 in determining a habitual residence of a child the case-law of the Court of Justice should be followed (Case C‑ 523/07)

II Application of rules on jurisdiction of Brussels IIbis Regulation in matters of parental responsibility in Latvian courts 2. 3. Application of Article 12 of Brussels IIbis Regulation in Latvian courts Article 12(1) and 12(2) of Brussels IIbis Regulation provides for provisions on jurisdiction when matrimonial matters could be examined jointly with matters of parental responsibility. Consolidation of claims in application of Brussels IIbis Regulation is possible only when several conditions are met. Grounds of jurisdiction in matrimonial matters are based on Article 3 of Brussels IIbis Regulation At least one of the spouses has parental responsibility in relation to the child The jurisdiction of the The courts has been jurisdiction of accepted expressly or the court is in otherwise in an the superior unequivocal manner by the spouses and by the interests of the child holders of parental responsibility, at the time the court is seised

II Application of rules on jurisdiction of Brussels IIbis Regulation in matters of parental responsibility in Latvian courts 2. 3. Application of Article 12 of Brussels IIbis Regulation in Latvian courts Possible solutions: In applying provisions of Brussels IIbis Regulation on prorogation of jurisdiction, upon receipt of an application Latvian courts should ex officio to determine, whether all conditions provided in Brussels IIbis Regulation are met for consolidation of claims, where necessary leaving an application not proceeded and setting a time limit for rectifying the deficiencies. If after rectifying the deficiencies a court determines that even one of the conditions provided in Brussels IIbis Regulation is not met, which is necessary to consolidate claims, Article 17 of Brussels IIbis Regulation and Article 131 of the Civil Procedure Law on refusal to accept the application should be applied

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