Višje sodišče v Ljubljani; 2023-05-25; IV Cp 919/2023
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2023:IV.CP.919.2023
Date: 2023-05-25
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82023SI0525(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the jurisdiction of the Slovenian courts in non-contentious divorce proceedings with an international element.
A Serbian national residing in Serbia (hereinafter ‘the plaintiff’) and a Slovenian national residing in Switzerland (hereinafter ‘the defendant’) married in Kranj, Slovenia, in January 2022 and previously had a temporary joint residence in Kranj. After both parties left Slovenia, the plaintiff filed a divorce petition, which the defendant consented to. The Court of First Instance declared that the Slovenian courts lacked jurisdiction and dismissed the petition.
The plaintiff appealed, arguing, in essence, that Article 3 of the new Brussels II Regulation (recast) (1) sets only minimum jurisdictional grounds and does not prevent Slovenian courts from assuming jurisdiction based on other connecting factors, such as the place where the marriage was concluded and the defendant’s Slovenian nationality. In the alternative, she contended that Slovenian jurisdiction could be established under Articles 68 and 69 of the ZMZPP (2). She also alleged violations of constitutional rights and rights under the ECHR (3).
The Court of Appeal dismissed the appeal. It held that Article 3 of the new Brussels II Regulation (recast) lays down an exhaustive list of connecting factors for jurisdiction in matrimonial matters and that none of those grounds was satisfied in the present case. It further rejected the plaintiff’s reliance on national law. The Court of Appeal explained that Article 68 ZMZPP requires either (i) that both spouses be Slovenian nationals, or (ii) that the plaintiff be a Slovenian national with permanent residence in Slovenia, or (iii) that the spouses had their last permanent residence in Slovenia, in which case the plaintiff must also have permanent or temporary residence in Slovenia at the time of filing. Those conditions were not met. Moreover, Article 69 ZMZPP requires that the spouses’ last common permanent residence be in Slovenia, which was likewise not satisfied. The Court also found the alleged legal gap and human rights violations unsubstantiated.
Accordingly, the Court of Appeal upheld the decision of the Court of First Instance.
(1) Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast).
(2) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(3) European Convention on Human Rights.