Višje sodišče v Ljubljani; 2025-01-10; IV Cp 1898/2024
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2025:IV.CP.1898.2024
Date: 2025-01-10
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82025SI0110(52)_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 proceedings for divorce by mutual consent and related matters of parental responsibility.
The plaintiff lodged an application before the Court of First Instance seeking (i) divorce by mutual consent, and (ii) decisions on the custody and upbringing of the parties’ minor child, maintenance and contact. The Court of First Instance found that both spouses and the child were resident in the United Kingdom and, relying on the 1996 Hague Child Protection Convention, declared that it lacked jurisdiction and rejected the application. In substance, it proceeded on the basis that jurisdiction for parental responsibility followed the child’s habitual residence within the meaning of Article 5 of that Convention (1).
The plaintiff appealed. He argued, inter alia, that the case lacked an international element because both spouses and the child were Slovenian nationals, and that Slovenian courts should therefore be competent.
The Court of Appeal upheld the appeal. It clarified, first, that an international element was present precisely because the family lived in the United Kingdom. It nevertheless held that Slovenian courts have jurisdiction for the divorce on the basis of both Article 68 of the ZMZPP (2) and Article 3(b) of the new Brussels II Regulation (recast) (3), since both spouses are Slovenian nationals.
As regards the child-related requests filed together with the divorce application, the Court of Appeal held that the Court of First Instance had been wrong to treat the child’s habitual residence under Article 5 of the 1996 Hague Child Protection Convention as decisive. In such circumstances, Article 10 of that Convention provides for the child-related proceedings (custody/upbringing and contact) to be brought before, and determined by, the court competent to decide the parents’ divorce.
Accordingly, the Court of Appeal annulled the contested decision and remitted the case to the Court of First Instance for further proceedings.
(1) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
(2) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(3) 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).