Oberster Gerichtshof, Urteil vom 13/10/2009 1 Ob 168/09a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125365
Date: 2009-10-13
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT1013(52)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, an Austrian citizen, brought an action for divorce against the defendant, a US citizen, on 14.09.2007. He stated that he had always had his habitual residence in Austria. This was also where the centre point of his life was located. After the defendant moved with their children to Slovenia, he had mostly visited his family on the weekends. However, he continued to live in Austria, where he practised his profession and spent his free time. The last common habitual residence of the spouses was in Austria. The defendant challenged the international jurisdiction of the Austrian courts. She argued that, according to Article 3 of the Regulation 2203/2003 "Brussels IIbis", the court of the Member State in whose territory the spouses are habitually resident or last were has jurisdiction over matters relating to divorce, wherefore the Slovenian courts have international jurisdiction over the current case. She claimed that the claimant had his habitual residence at the matrimonial home in Slovenia for the last 6 months before bringing the action for divorce.
The OGH (AT) points out that the various grounds of jurisdiction in Article 3(1)(a) Brussels IIbis Regulation are ranked equally to each other and that international jurisdiction may be established on the basis of any one of these alternatives. As long as - in the lack of complete evidence - it is not conclusively settled whether the claimant had his habitual residence in Austria in the 6 months before the action was brought, the matter is by no means ready for disposal by judgment in the sense of a dismissal of the action.