Najvyšší súd Slovenskej republiky; 2018-04-25; 5Cdo/137/2017
Decision by national courts in the field of European Union law — ECLI:SK:NSSR:2018:1115224749.1
Date: 2018-04-25
Subject matter: Judicial cooperation in civil matters
Origin: Slovakia

82018SK0425(51)_ENG_SUMJURE
JURE summary
JURE summary
The Najvyšší súd Slovenskej republiky (hereinafter ‘the Supreme Court’) ruled on the plaintiff's appeal against the decision of the Krajský súd Bratislava (the Court of Appeal) which upheld the cessation of the divorce proceedings and the attribution of parental responsibility due to the lack of jurisdiction.
Neither of the spouses had a common habitual residence in the territory of the Slovak Republic, nor the same nationality. At the time of the application for divorce, the husband was habitually resident in Finland. The appellant argued that her habitual residence was in the Slovak Republic as she had been living on its territory for more than six months, therefore the Slovak courts had jurisdiction to decide on the issue under Article 3(1)(a) of the new Brussels II Regulation (1).
The Supreme Court assessed whether it has jurisdiction under Article 3 (1)(a) and referred to the case-law C-497/10 (2) and C-376/14 (2). Despite the fact that these decisions concern the interpretation of Article 8 of the new Brussels II Regulation, the Supreme Court is of the opinion that in view of the uniform interpretation of the concept of habitual residence contained in this Regulation, there is no reason for which these conclusions could not be reasonably applicable and legally relevant also in determining the content of this concept regarding divorce proceedings. According to the established case law, factors relevant for determining one’s habitual residence are, inter alia: the duration, regularity, conditions and reasons for the person’s stay in the territory of a Member State, as well as nationality, work activities, language skills and social ties of the person concerned in that State. In addition, paramount importance should be given to the intention of the person to establish the permanent or habitual centre of his interests in the Member State, with the purpose that it should be of a lasting character (See C-497/10, point 51).
Following the enlisted criteria, the Supreme Court concluded that the appellant was not habitually resident in the Slovak Republic for the period of six months prior to her application for the divorce proceedings. The circumstance of the case lead to the conclusion that the appellant established the permanent centre of her interest in another Member State (Finland) without proving any intention of changing the centre of her interest prior to the proceedings. Furthermore, the Supreme Court stated that for the purposes of assessing jurisdiction within the meaning of Article 3(1)(a)(6), only the conduct that occurred prior to the application for the divorce is decisive.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(2) Judgment of the Court of Justice of 22 December 2010, Barbara Mercredi v Richard Chaffe, C-497/10 PPU, ECLI:EU:C:2010:829.
(3) Judgment of the Court of Justice, 9 October 2014, C v M., C‑376/14 PPU, ECLI:EU:C:2014:2268.