62024CJ0061_RES
Case C‑61/24 [Lindenbaumer] (
i
)
DL
v
PQ
(Request for a preliminary ruling from the Bundesgerichtshof)
Judgment of the Court (Third Chamber) of 20 March 2025
(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil matters – Enhanced cooperation in the area of the law applicable to divorce and legal separation – Regulation (EU) No 1259/2010 – Article 8(a) and (b) – Concept of ‘habitual residence’ of the spouses – Status of diplomatic agent of one of the spouses – Vienna Convention on Diplomatic Relations)
Judicial cooperation in civil matters – Law applicable to divorce and legal separation – Regulation No 1259/2010 – Concept of habitual residence of the spouses – Status of diplomatic agent of one of the spouses and assignment of that spouse to a post in a receiving State – Absence of habitual residence of the spouses in the receiving State – Exception – Intention of the spouses to establish in that State the habitual centre of their interests – Criteria for assessment
(Council Regulation No 1259/2010, Art. 8(a) and (b))
(see paragraphs 35-67, operative part)
Résumé
Hearing a request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany), the Court of Justice clarifies the concept of ‘habitual residence’ of the spouses within the meaning of Regulation No 1259/2010, (
1
) where one of the spouses has the status of diplomatic agent and is assigned to a post in a receiving State.
DL and PQ, who are German nationals, married in 1989. After having lived together for more than 10 years in rented accommodation in Berlin (Germany) (‘the family home’), and then for approximately 2 years in Stockholm (Sweden), they moved in September 2019 to Moscow (Russia) to accommodation located in the compound of the German Embassy, within which PQ performs the duties of an Embassy Counsellor.
With a view to returning to Germany, the spouses kept, however, their family home, in which, since September 2019, one of their adult children has resided; some parts of that accommodation were sublet until June 2020.
In January 2020, DL returned to Berlin to undergo surgery and remained in the family home until February 2021. She then returned to Moscow in the accommodation attached to the German Embassy, which she left permanently in May 2021 in order to return to Berlin. She now lives in the family home in Berlin, while PQ continues to live in Moscow.
On 8 July 2021, PQ filed a divorce petition with the Amtsgericht (Local Court, Germany), claiming that he had lived separately from DL since January 2020 and that the separation had become final in March 2021. DL opposed that petition on the ground that the couple had not been separated until May 2021 at the earliest when she returned to Berlin. The petition was dismissed in so far as the period of one year of separation, required by German law, had not expired and that there were no sufficiently serious reasons for pronouncing the divorce immediately.
Hearing an appeal brought by PQ, the Kammergericht (Higher Regional Court, Germany) by contrast pronounced the divorce under Russian law, which it held to be applicable in view of the spouses’ last habitual residence, in accordance with Article 8(b) of Regulation No 1259/2010.
DL brought an appeal on a point of law before the referring court against the divorce judgment. That court has doubts as to whether the interpretation of the concept of ‘habitual residence’, in the light of Regulation No 1259/2010, must correspond to that of the same concept in Regulation No 2201/2003. (
2
) It wonders whether the posting in a State of one of the spouses as a diplomatic agent, the duration of the spouses’ physical presence in that State and the degree of social and family integration in that State constitute relevant, or even decisive, factors for establishing the spouses’ ‘[habitual residence]’, referred to in Article 8(a) and (b) of Regulation No 1259/2010.
Findings of the Court
The Court finds, first of all, that Regulation No 1259/2010 does not contain a definition of the concept of ‘habitual residence’ and makes no reference to the law of the Member States for the purpose of determining the meaning and scope of that concept. Consequently, an autonomous and uniform interpretation must be sought taking into account the wording of that provision, its context and the objectives pursued by the rules of which it forms part.
As regards the concept of ‘[habitual residence]’ within the meaning of Article 3(1)(a) of Regulation No 2201/2003, it is characterised, in principle, by two factors, namely, first, the intention of the person concerned to establish the habitual centre of his or her interests in a particular place and, second, a presence which is sufficiently stable in the Member State concerned. In the light of the necessary consistency between the provisions of Regulations No 1259/2010 and No 2201/2003, those factors are required in order to characterise the concept of ‘[habitual residence]’ within the meaning of Article 8(a) and (b) of Regulation No 1259/2010. Such a unitary conception reflects the close relationship between those two regulations governing, inter alia, divorce and legal separation.
A definition of the concept of ‘[habitual residence]’ of the spouses within the meaning of Article 8(a) and (b) of Regulation No 1259/2010, which is characterised, in principle, by those two factors, ensures both the objective of legal certainty and predictability and the necessary flexibility in matrimonial proceedings, while preventing any abuse as regards the choice of the applicable law.
As regards, first, the status of diplomatic agent of one of the spouses, the nature and specificity of the professional activity of a diplomatic agent posted to an external representation in a receiving State militate, in principle, on account of the circumstances inherent in that function, in favour of the absence of habitual residence, within the meaning of Article 8(a) and (b) of Regulation No 1259/2010, of that agent and his or her spouse in that State.
However, although the status of diplomatic agent of one of the spouses constitutes a relevant factor in the examination of the habitual nature of the spouses’ residence in the territory of the receiving State, as regards the assessment of the reasons for their presence in that State and the conditions of their stay, that factor is not in itself decisive for the purpose of precluding recognition of the habitual residence of the person concerned and of the members of his or her family in that State. The determination of the spouses’ ‘habitual residence’ must, even in the presence of such a factor, be made on the basis of all the factual circumstances specific to each individual case.
As regards, second, the criterion of the duration of the physical presence of the spouses on the territory of a State, the particular situation of diplomatic agents, by reason of the nature of their duties, and of their family members must be taken into account. Those persons often retain a close relationship with the sending State to which they regularly travel. Moreover, since diplomatic agents are generally subject to a principle of rotation, the duration of their stay in the receiving State may be perceived as prima facie temporary, even though it may sometimes be of a significant length in practice. In those particular circumstances, the duration of the spouses’ physical presence in the territory of the receiving State does not, in itself, constitute a decisive factor as to the habitual nature of their residence in that State. It cannot be ruled out, in that regard, that the spouses may be present in that territory for a significant period of time while retaining the centre of their interests in the sending State, to which they regularly travel.
Third, social integration in a State, whether the receiving State or the sending State, is a relevant factor for the purposes of determining the habitual residence of the spouses. That integration is such as to give concrete expression to the subjective element relating to the intention of the parties concerned to establish the habitual centre of their interests in a particular place. Family ties maintained in the sending State or, on the contrary, those created in the receiving State may also be relevant in the context of the analysis of all the factual circumstances specific to the individual case.
In any event, in accordance with the Court’s case-law in relation to Regulation No 2201/2003, which can be transposed to the interpretation of the concept of ‘[habitual residence]’ within the meaning of Article 8(a) and (b) of Regulation No 1259/2010, a spouse who divides his or her time between two Member States may have his or her habitual residence in only one of those States.
The Court concludes that Article 8(a) and (b) of Regulation No 1259/2010 must be interpreted as meaning that the status of diplomatic agent of one of the spouses and his or her assignment to a post in the receiving State preclude, in principle, the ‘habitual residence’ of the spouses from being considered to be established in that State. The position would be different if, following an overall assessment of all the circumstances specific to the case, including, in particular, the duration of the spouses’ physical presence and their social and family integration in that State, it was determined (i) that the spouses intend to establish in that State the habitual centre of their interests and (ii) that there is a sufficiently stable presence in the territory of that State.
(
i
)	The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.
(
1
)	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 (OJ 2010 L 343, p. 10).
(
2
)	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 (OJ 2003 L 338, p. 1).