Qorti Civili (Sezzjoni tal-Familja); 2016-05-31; 27/2015
Decision by national courts in the field of European Union law — ECLI:MT:FMLJ:2016:100941
Date: 2016-05-31
Subject matter: Judicial cooperation in civil matters
Origin: Malta

82016MT0531(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards an objection concerning an alleged lack of international jurisdiction in divorce proceedings resolved by the Maltese Civil Court – Family Section (hereinafter ‘the Court of First Instance’).
One of the spouses, domiciled in Malta (hereinafter ‘the plaintiff’), applied before the Court of First Instance requesting that the court (a) declare and pronounce the personal separation between the parties and (b) resolve the divorce-related matters, including, in particular, that the matrimonial home located in the United Kingdom be sold and the proceeds be divided equally among the parties.
The defendant in her reply requested the Court of First Instance stay proceedings since (a) divorce proceedings had already been filed in the United Kingdom and (b) the assets of the parties are situated in the United Kingdom, stating that the courts in Malta do not have jurisdiction over property situated within said country.
The plaintiff stated that he had been living in Malta for the past five years, he had ties with Malta and intended to continue residing in Malta. The defendant did not contest the habitual residence of the plaintiff. The Court of First Instance concluded that the plaintiff has in fact established his habitual residence in Malta.
The Court of First Instance cited Article 3(1)(a) of the new Brussels II Regulation (1) and declared that under this article, it does have jurisdiction because the plaintiff had resided in Malta for the past five years and continues to reside within the same country.
The Court of First Instance confirmed that the application for divorce in the United Kingdom was filed 2 days before the plaintiff filed this court case in Malta. However, under Maltese Law, separation proceedings have to start by filing a letter in the registry to start the mediation process, which will precede contentious separation proceedings in court. The request for the start of mediation proceedings was correctly filed around 6 weeks before the proceedings in the United Kingdom were instituted, and, within the obligatory time period of two months, the plaintiff successfully filed this court case for separation. Hence, the court case on its own cannot exist without the mediation proceedings and therefore the Court of First Instance considers the request for mediation proceedings as the start of the said proceedings. Therefore, the first court seised is the Court of First Instance and not the court within the United Kingdom.
The defendant invoked also exclusive jurisdiction under Article 24(1) of the Brussels I Regulation (recast) (2), however, the Court of First Instance recalled that the Brussels I Regulation (recast) regards the disputes in civil and commercial matters, and it cannot be applied to divorce proceedings, since this matter is governed by the new Brussels II Regulation. These two regulations are distinct lex specialis which do not overlap in any way or manner. The Court of First Instance recalled that, pursuant to Article 21 of the new Brussels II Regulation, ‘a judgment given in a Member State shall be recognised in the other Member State without any special procedure being required’. Therefore, it is clear that this court can give a judgment in this case even though the parties may have an immovable property in the United Kingdom, since the judgment given by the Court of First Instance shall be subsequently recognized in the United Kingdom.
The Court of First Instance declared that it does have jurisdiction to hear this case and to decide this action and ordered the continuation of the case.
(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) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.