Višje sodišče v Mariboru; 2019-04-16; III Cp 360/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2019:III.CP.360.2019
Date: 2019-04-16
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI0416(51)_ENG_SUMJURE
JURE summary
JURE summary
The present case concerns a question of international jurisdiction of the Slovenian courts and the application of European and Slovenian law, which was resolved by the Višje sodišče v Mariboru (hereinafter ‘the Court of Appeal’).
The case regards the divorce of a marriage of Syrian citizens. The marriage was concluded under the Sharia law in Damask (Syria). The plaintiff, domiciled in Maribor (Slovenia), lodged the request for a divorce before the Okrožno sodišče v Mariboru (hereinafter ‘the Court of First Instance’). The domicile of the defendant was unknown. The Court of First Instance invoked the new Brussels II Regulation (1) and the Rome III Regulation (2), granted the request and divorced the marriage.
The defendant appealed to the Court of Appeal seeking to annul the divorce, alleging, mainly, (a) an erroneous application of European regulations since the former spouses were not nationals of the Member States of the European Union, (b) a lack of reference to specific Syrian law which the Court of First Instance applied to the divorce, (c) a misapplication of Slovenian law, and (d) the fact that only the plaintiff’s view on the marriage was heard.
The Court of Appeal found neither violations of procedural nor of the substantial law. European legislation is superior to national law whenever an international element is present in a case. The fifth indent of Article 3(1)(a) of the new Brussels II Regulation provides that ‘in matters relating to divorce ... jurisdiction shall lie with the courts of the Member State, in whose territory the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made’. It was proven that the plaintiff was domiciled in Slovenia during the requested period, which justified the jurisdiction of the Slovenian courts. The Court of First Instance also correctly applied the provisions of ZZDR (3) concerning the assessment of unsustainability of the marriage declared by the plaintiff.
Furthermore, Article 10 of the Rome III Regulation stipulates that where the law applicable (Sharia law in this case) ‘does not grant one of the spouses equal access to divorce on grounds of their sex, the law of the forum shall apply’. The translation of Syrian Sharia law on divorce shows exactly such gender inequality, that is why Slovenian law shall apply.
The Court of Appeal dismissed the appeal and upheld the decision of the Court of First Instance.
(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) Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.
(3) Zakon o zakonski zvezi in družinskih razmerjih (Marriage and Family Relations Act).