Rechtbank Utrecht, uitspraak van 19/01/2009 260054 / FA RK 08-7644
Decision by national courts in the field of European Union law — ECLI:NL:RBUTR:2009:BH3036
Date: 2009-01-19
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82009NL0119(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties were spouses of Moroccan origin. The wife petitioned the Rechtbank of Utrecht (NL) for provisional measures granting her care of the common minor children of the spouses, to declare hers the habitual residence of the children, and to establish a maintenance schedule for child support. The husband disputed the jurisdiction of the Rechtbank arguing that both he and the children were domiciled and had their habitual residence in Morocco and not in the Netherlands. The wife disputed this. It is undisputed that the parties had their last common family residence in the Netherlands. The husband added that there is a pending divorce proceeding between the parties in Morocco.
The Rechtbank of Utrecht does not need to settle whether the husband and the children are domiciled or habitually resident in the Netherlands or in Morocco, insofar as concerns child support and parental responsibility. Lie the domicile in the Netherlands, and jurisdiction arises from Article 2 Brussels I Regulation for child support, and from Article 8 Brussels II bis Regulation for parental responsibility. Lie the domicile in Morocco, then the Rechtbank, pursuant to to Article 4 (2) Rv (Dutch Rules of Civil Procedure) in conjunction with Article 3 Brussels II bis Regulation, has jurisdiction at least for the divorce proceedings, as the Netherlands are the place of the last common family residence. This jurisdiction also extends to ancillary matters within the meaning of Article 1:822 Rv. A divorce proceeding in Morocco only has the force of lis pendens if the same ancillary matters are pending there as here. In any case, the Dutch judges maintain jurisdiction over the declaration of provisional measures pursuant to Article 13 Rv. The declaration of the place of residence of the children, in contrast, is not an ancillary matter. The Rechtbank sustains the claims for parental responsibility and child support and declares itself as otherwise lacking in jurisdiction.