Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (approved by the Council on 28 May 1998) prepared by Dr Alegría Borrás Professor of Private International Law University of Barcelona
Date: 1998-05-28
Institutions: Council of the European Union
Subjects: EU law - national law, application of the law, divorce, family law, marriage, simplification of formalities

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EXPLANATORY  REPORT

on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on
Jurisdiction  and  the  Recognition  and  Enforcement  of  Judgments  in  Matrimonial  Matters

(approved  by  the  Council  on  28  May  1998)

prepared  by  Dr  ALEGRÍA  BORRÁS

Professor  of  Private  International  Law  University  of  Barcelona

(98/C 221/04)

CONTENTS

I. BACKGROUND  TO  THE  CONVENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

II. GENERAL  LAYOUT  OF  THE  CONVENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

III. ANALYSIS  OF  THE  PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A. Scope  (Article  1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B.

Jurisdiction:  general  provisions  (Articles  2  to  8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C. Examination  as  to  jurisdiction  and  admissibility  (Articles  9  and  10) . . . . . . . . . . . . . . . . . . .

D. Lis  pendens  and  dependent  actions  (Article  11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

E. Provisional  and  protective  measures  (Article  12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F. Recognition  and  enforcement  of  judgments:  Meaning  of  a  judgment  (Article  13) . . . . . . . .

G. Recognition  (Articles  14  to  19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

H. Enforcement  (Articles  20  to  32) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I. Recognition  and  enforcement  of  judgments:  common  provisions  (Articles  33  to  36) . . . . . .

J. Transitional  provisions  (Article  37) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

K. General  provisions  (Articles  38  to  44) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

L. Court  of  Justice  (Article  45) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

M. Final  provisions  (Articles  46  to  50). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Page

28

32

35

35

36

45

45

47

48

49

54

57

58

59

63

63

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I. BACKGROUND  TO  THE  CONVENTION

1. European integration was mainly an economic affair to begin with and for that reason the
legal  instruments  established  were  designed  to  serve  an  economic  purpose.  However,  the
situation has changed fundamentally in recent times so that integration is now no longer
purely economic and is coming to have an increasingly profound effect on the life of the
European citizen, who finds it hard to understand that he encounters problems in matters
of family law while so much progress has been made in property law. The issue of family
law  therefore  has  to  be  faced  as  part  of  the  phenomenon  of  European  integration.  We
only need to look at the questions put in the European Parliament not only on dissolution
of  marriages  but  also  on  more  general  aspects  of  family  law  (marriage  contracts,
paternity, child abduction, adoption, etc.). This Convention is a first step, and a positive
and decisive one, along this new road and it may open the way to other texts on matters
of  family  law  and  succession.

2. This  Convention  was  made  possible  by  the  Maastricht  Treaty,  which  opened  up  new
channels  for  judicial  cooperation  in  civil  matters  under  Article  K.3  (see  Section  II,
paragraph 11). Until then, what limited scope there was depended only on Article 220 of
the  Treaty  establishing  the  European Economic Community. In that Article, the Member
States undertook, so far as is necessary, to enter into negotiations with each other with a
view  to  securing  for  the  benefit  of  their  nationals  the  simplification  of  formalities
governing the reciprocal recognition and enforcement of judgments of courts or tribunals
and  of  arbitration  awards.  In  a  note  sent  to  the  Member  States  on  22  October  1959
inviting  them  to  commence  negotiations,  the  Commission  pointed  out  that:

‘a  true  internal  market  between  the  six  States  will  be  achieved  only  if  adequate  legal
protection  can  be  secured.  The  economic  life  of  the  Community  may  be  subject  to
disturbances and difficulties unless it is possible, where necessary by judicial means, to
ensure the recognition and enforcement of the various rights arising from the existence
of  a  multiplicity  of  legal  relationships.  As  jurisdiction  in  both  civil  and  commercial
matters  is  derived  from  the  sovereignty  of  Member  States,  and  since  the  effect  of
judicial  acts  is  confined  to  each  national  territory,  legal  protection  and,  hence,  legal
certainty  in  the  common  market  are  essentially  dependent  on  the  adoption  by  the
Member  States  of  a  satisfactory  solution  to  the  problem  of  recognition  and
enforcement  of  judgments’.

Various  Conventions  have  been  concluded  directly  or  indirectly  on  the  basis  of
Article  220  of  the  Treaty  establishing  the  European  Economic  Community.  The  major
achievement  in  judicial  matters  was  the  Brussels  Convention  of  27  September  1968  on
jurisdiction  and  the  enforcement  of  judgments  in  civil  and  commercial  matters  and  the
various  amendments  resulting  from  enlargement  of  the  Community.  Article  1(2)  of  that
Convention excludes a range of matters from its scope. These exclusions were based on a
great variety of grounds and some of the matters excluded have been dealt with in other
Conventions, for instance the Convention on insolvency proceedings signed in Brussels on
23  November  1995.

In  addition,  the  30  years  which  have  passed  since  its  conclusion  and  the  practical
application  of  the  Brussels  Convention  have  led  to  the  initiation  of  a  process  of  revision
of  the  latter,  carried  out  at  the  same  time  as  that  of  the  Lugano  Convention  of
16  September  1988  (the  so-called  parallel  Convention).  As  only  preliminary  studies  have
been carried out and only two meetings have been held of the ad hoc Working Party set
up  to  prepare  the  revised  text,  it  has  not  been  possible  to  take  account  of  those
proceedings  in  the  drafting  of  this  Convention.  There  is  still  the  possibility,  therefore,  of
adapting  this  Convention  to  the  revised  Brussels  Convention  at  a  later  date.

As the situation changed, it was normal that Member States should endeavour to respond
to European citizens’ new requirements and this Convention is the latest such endeavour.

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The  desire  to  extend  the  1968  Brussels  Convention  to  family  issues  is  a  recent
development  and  the  grounds  are  twofold.

3.

In  the  first  place,  the  grounds  for  exclusion  from  the  1968  Brussels  Convention  need  to
be  recalled.  The  Jenard  report  (explanatory  report  on  the  original  version  of  the
Convention)  justified  the  exclusion  of  matters  relating  to  natural  persons  as  follows:

‘Even  assuming  that  the  Committee  managed  to  unify  the  rules  of  jurisdiction  in  this
field,  and  whatever  the  nature  of  the  rules  selected,  there  was  such  disparity  on  these
matters  between  the  various  systems  of  law,  in  particular  regarding  the  rules  of
conflict  of  laws,  that  it  would  have  been  difficult  not  to  re-examine  the  rules  of
jurisdiction  at  the  enforcement  stage.  This  in  turn  would  have  meant  changing  the
nature  of  the  Convention  and  making  it  much  less  effective.  In  addition,  if  the
Committee  had  agreed  to  withdraw  from  the  court  of  enforcement  all  powers  of
examination,  even  in  matters  not  relating  to  property  rights,  that  court  would  surely
have  been  encouraged  to  abuse  the  notion  of  public  policy,  using  it  to  refuse
recognition to foreign judgments referred to it. The members of the Committee chose
the  lesser  of  the  two  evils,  retaining  the  unity  and  effectiveness  of  their  draft  while
restricting  its  scope.  The  most  serious  difficulty  with  regard  to  status  and  legal
capacity  is  obviously  that  of  divorce,  a  problem  which  is  complicated  by  the  extreme
divergences  between  the  various  systems  of  law.’

is  therefore  the 

The  1968  Convention 
‘general  convention’  on  recognition  and
enforcement,  under  the  mandate  in  Article  220  of  the  Treaty  establishing  the  European
Economic  Community;  it  does  not  exclude  any  civil  or  commercial  matter  per  se  and
could  have  dealt  with  status  and  legal  capacity.  They  were  excluded  because  of  their
complexity  and  the  fact  that  they  did  not  directly  affect  economic  integration.

4.

In the second place, in family law the major issue is divorce, matrimonial matters as dealt
with  in  this  Convention.  It  should  be  noted  that  the  Jenard  report  refers  to  the  ‘extreme
divergences’  between  systems  of  law  at  a  time  when  there  were  only  six  Member  States;
those  divergences  are  clearly  greater  now  that  there  are  15  Member  States,  so  that  the
difficulties facing the Working Party were greater. These are not minor differences; some
of  them  even  have  constitutional  implications.  In  other  cases  the  difficulties  affect  the
recognition  or  non-recognition  of  the  various  forms  of  civil  status  affected  by  the
Convention  (for  instance,  separation  and  annulment  are  unknown  in  the  national  law  of
Finland and Sweden). Even among States which have all the various forms covered, there
are  significant  differences  in  the  rules  (grounds,  prior  separation  requirement,  etc.).

Neither  the  time  required  to  achieve  a  convention  nor  the  compromise  solutions  which
had  to  be  worked  out  in  some  instances  can  therefore  come  as  a  surprise.  The  exclusion
of  this  matter  from  the  1968  Convention  and  the  preparation  of  this  Convention
highlight  the  difference  between  family  litigation  and  property  litigation.  European
integration has advanced considerably in the 30 years since the 1968 Brussels Convention
was  drawn  up.  The  achievement  of  free  movement  of  persons  and  establishment  of
increasingly  frequent  family  links  between  individuals  who  are  nationals  or  residents  of
different  countries  demanded  a  judicial  response  which  is  provided  by  this  Convention,
taking  account  of  the  various  elements  involved.

5. A  full  discussion  was  held  on  the  question  whether  a  convention  on  jurisdiction  and  the
recognition  and  enforcement  of  judgments  in  matrimonial  matters  was  necessary.  Some
Member  States,  which  were  parties  to  the  Hague  Convention  of  1  June  1970  on  the
Recognition  of  Divorces  and  Legal  Separations,  expressed  satisfaction  at  the  results

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achieved  by  applying  it.  Other  Member  States,  however,  which  were  not  parties  to  the
1970  Hague  Convention,  declared  that  they  were  not  prepared  to  become  parties  to  it.
There  were  three  fundamental  arguments  in  favour  of  considering  the  advantages  of
drawing  up  a  new  convention  in  a  European  context:

(a)

the  desire  to  introduce  uniform  standards  for  jurisdiction  in  matrimonial  matters;

(b)

the need to introduce modern rules for the recognition and enforcement of judgments
on  annulment,  divorce  and  separation  among  the  Member  States  of  the  European
Union,  establishing  a  uniform  procedure;

(c)

the  avoidance  of  parallel  procedures  on  matrimonial  matters  in  different  Member
States,  establishing  rules  on  lis  pendens,  an  innovation  that  on  its  own  would  be
justification  for  the  Convention  and  would  contribute  to  the  prevention  of
contradictory  rulings.

For  all  those  reasons  the  Council  decided  to  initiate  negotiations  on  the  conclusion  of  a
convention  on  these  matters.  It  should  also  be  pointed  out  that  Article  18  of  the  1970
Hague  Convention  allows  the  States  party  to  it  to  conclude  conventions  on  those
matters.

6. The  initial  purpose  of  the  Convention  was  to  extend  the  1968  Brussels  Convention  to
cover  matrimonial  matters.  Hence  the  starting-point  for  the  preparation  of  this
Convention  lies  in  the  text  of  the  1968  Convention  which  is  cited  in  the  preamble.  It
would  have  been  impossible  to  disregard  such  an  important  background  text  which  has
been  demonstrably  successful  and  is  accompanied  by  extensive  case-law  from  the  Court
of  Justice  of  the  European  Communities,  making  it  possible  to  pinpoint  its  most
controversial  features  in  the  section  applicable  to  this  text.  Nevertheless,  the  differing
matters covered in both texts result in significant differences on a number of points (e. g.
the fact that there is no general forum and the absence of any hierarchy in the grounds of
jurisdiction) whereas in other areas the rules are more convergent (as for lis pendens and
automatic  recognition).  The  outcome  is  therefore  a  separate  convention  although  the
objectives  pursued  are  the  same:  to  unify  the  rules  on  international  jurisdiction  and  to
facilitate  international  recognition  and  enforcement  of  judgments.

Unless  stated  otherwise,  the  identical  terms  in  the  1968  Brussels  Convention  and  in  this
Convention  must  in  principle  be  considered  to  mean  the  same  thing  and  therefore  the
case-law  of  the  Court  of  Justice  of  the  European  Communities  must  be  taken  into
consideration. It should be noted that on provisions for which the wording is the same as
in  the  Brussels  Convention,  there  is  little  to  add  to  the  explanatory  reports  on  the  1968
Convention and the subsequent amendments thereto. It seemed advisable, nevertheless, to
reproduce  the  necessary  sections  of  the  earlier  report  in  this  one  for  ease  of  consultation
by  the  judiciary,  who  are  thus  not  obliged  to  consult  several  different  texts  in
conjunction.

7.

In  the  early  1990s  consideration  was  given  in  the  context  of  European  political
cooperation to the viability of a convention at European level on proceedings to dissolve
or  loosen  the  marriage  bond.  On  the  basis  of  a  questionnaire  drawn  up  by  the  United
Kingdom  Presidency  in  1992  and  a  synthesis  of  the  replies  prepared  by  the  Danish
Presidency  in  the  first  half  of  1993,  the  Member  States  conducted  an  initial  exchange  of
views on the matter. Under the Belgian Presidency in the second half of 1993, before the
Treaty  on  European  Union  came  into  force,  Professor  Marc  Fallon  was  invited  to  a
meeting  of  the  Working  Party  in  his  capacity  as  Secretary  of  the  European  Group  on
Private International Law and reported on the Heidelberg Project, which was prepared by
that  Group  and  is  so  called  because  it  was  approved  in  Heidelberg  on  2  October  1993.
The European Group, as a group of specialists whose sole objective is to make proposals

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in  the  fields  in  which  Community  law  and  private  international  law  come  together,
approved  a  proposal  for  a  convention  on  jurisdiction  and  the  enforcement  of  judgments
in  family  and  succession  matters  which  was  of  considerably  broader  scope  than  this
Convention. The need to achieve results and developments in the studies carried out made
it  necessary  to  focus  the  work  within  the  European  Union  on  a  more  limited  range  of
subjects.

8. At its meeting in Brussels on 10 and 11 December 1993 the European Council considered
that the entry into force of the Treaty opened up new prospects for the European citizen,
requiring  additional  work  to  be  carried  out  in  respect  of  certain  aspects  of  the  citizen’s
family  life.  To  that  end,  the  Council  considered  that  examination  of  the  possibilities  of
extending  the  scope  of  the  1968  Brussels  Convention  to  matters  of  family  law  should  be
actively pursued. In the first half of 1994 the Greek Presidency circulated a questionnaire
to  the  Member  States  to  identify  the  general  outline  of  what  the  Convention  should
contain. In the light of the replies received, a synthesis was drawn up and used as a basis
for the instruction to draw up a draft convention given by the European Council in June
1994.  In  the  second  half  of  1994  the  German  Presidency  presented  a  draft  convention
covering only divorce, legal separation and marriage annulment. The Spanish and French
delegations  then  requested  the  inclusion  of  child  custody  within  the  scope  of  the
convention.

9. When  describing  the  background  to  the  Convention,  we  cannot  fail  to  mention  the
contacts  maintained  with  the  Hague  Conference  on  Private  International  Law.  While  the
European  Union  was  preparing  the  Convention  on  Jurisdiction  and  the  Recognition  and
Enforcement  of  Judgments  in  Matrimonial  Matters,  the  Hague  Conference  on  Private
International Law was revising the Convention of 5 October 1961 concerning the powers
of authorities and the law applicable in respect of the protection of infants. That situation
must be taken into account in relation to the possibility of a provision in the new Hague
Convention  relating  to  the  competence  of  the  authorities  of  the  country  of  divorce  to
adopt  measures  to  protect  the  children,  although  differing  working  methods  require
different  approaches.  Thus,  while  the  European  Union  has  observer  status  at  the  Hague
Conference  (so  that  representatives  of  the  Commission  and  the  Council  Secretariat  are
attending  the  proceedings  in  The  Hague),  the  reverse  is  not  possible  under  the  Treaty
establishing  the  European  Community  and  the  Treaty  on  European  Union.  For  that
reason,  beginning  with  the  French  Presidency  in  the  first  half  of  1995,  the  Troika,  the
Council  Secretariat  and  the  Commission,  alongside  the  official  meetings,  held  informal
meetings  with  the  Permanent  Bureau  of  The  Hague  Conference  on  Private  International
Law  in  view  of  the  links  between  the  texts  under  preparation  in  both  forums.

The  initial  problems  regarding  the  relationship  between  the  two  Conventions  under
preparation  were  thus  resolved  and  the  result  is  visible  both  in  the  Convention  which  is
the subject of this report, concluded between the Member States of the European Union,
and  in  the  Hague  Convention  of  19  October  1996  on  Jurisdiction,  Applicable  Law,
Recognition,  Enforcement  and  Cooperation  in  Respect  of  Parental  Responsibility  and
Measures for the Protection of Children. At the Council of Ministers of Justice and Home
Affairs on 25 September 1995, it was agreed that ‘it was essential to make provision for
custody  of  children  in  the  context  of  these  proceedings,  in  the  form  of  measures
supplementary  to  those  laid  down  in  the  Hague  Convention’.  Therefore  once  the  Hague
Convention  had  been  concluded,  its  provisions  were  taken  into  account  by  the  Working
Party,  particularly  those  directly  affecting  the  Convention  now  under  consideration,  i.  e.
Article  10  regarding  the  jurisdiction  of  the  courts  deciding  on  the  annulment  of  a
marriage,  an  application  for  divorce  or  legal  separation  of  the  parents  to  take  measures
directed  to  the  protection  of  the  child  and  Article  52  regarding  the  relationship  between
the Hague Convention and other Conventions, and particularly the possibility for one or
more  Contracting  States  to  conclude  agreements  which  contain,  in  respect  of  children
habitually  resident  in  any  of  the  States  Parties  to  such  agreements,  provisions  on  matters
governed  by  the  Hague  Convention.

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10. Preparation of the text of the Convention became the responsibility of the Working Party
on  Extension  of  the  Brussels  Convention  which  has  been  meeting  on  a  constant  basis
since  1993.  The  negotiations  were  lengthy  and  on  some  points  particularly  difficult.  At
the Council meeting in December 1997, under the Luxembourg Presidency, final political
agreement  was  reached  on  a  series  of  provisions  on  the  basis  of  the  final  compromise
solution  proposed  by  the  Presidency.

In  broad  terms,  that  is  the  history  of  the  laborious  but  fruitful  work  which  went  into
preparing  the  Convention  now  before  us.

II. GENERAL  LAYOUT  OF  THE  CONVENTION

11. The  first  point  of  interest  is  the  legal  basis  for  the  text.  When  the  Brussels  Convention
was concluded in 1968 only Article 220 of the Treaty was available as a basis. At present
we have, in addition to that Article, another provision which can serve as a legal basis for
the  Convention:  the  new  provision  introduced  by  the  Maastricht  Treaty,  i.  e.  Article  K.3
in  conjunction  with  Article  K.1.  In  point  6  of  Article  K.1,  ‘judicial  cooperation  in  civil
matters’ is listed as one of the ‘matters of common interest’ referred to in the introductory
wording  to  that  Article  for  the  purposes  of  achieving  the  objectives  of  the  Union.  Such
cooperation  undoubtedly  contributes  to  the  achievement  of  one  of  the  objectives  of  the
Union,  ‘to  develop  close  cooperation  on  justice’  (Article  B).

Dealing  in  a  precise  and  appropriate  manner  with  the  matter  which  is  the  subject  of  the
Convention  is  undoubtedly  a  significant  achievement  in  terms  of  provisions  on  judicial
cooperation  between  the  Member  States  of  the  European  Union  in  civil  matters.
Accordingly  Article  K.3  of  the  Treaty  was  chosen  as  the  legal  basis  for  the  Convention
although  Article  220  would  also  have  been  a  theoretically  possible  legal  basis.  Finally,  it
should  be  pointed  out  that  the  legal  basis  has  consequences  for  the  drafting  process,  but
not  for  legal  practitioners  or  for  the  citizen  as  regards  the  application  of  the
Convention.

In  line  with  the  provisions  of  Title  VI,  the  Commission  was  fully  associated  with  the
proceedings  of  the  Working  Party,  that  is  to  say  it  took  an  active,  positive  part  in  the
preparation  of  the  text.  At  the  close  of  the  Working  Party’s  proceedings,  the  Presidency,
in  accordance  with  Article  K.6  of  the  Treaty  on  European  Union,  presented  the  text  of
the  draft  Convention  for  consideration  by  the  European  Parliament.

The  European  Parliament  delivered  its  opinion  in  the  plenary  session  of  30  April  1998.
During  May  1998  the  relevant  Council  bodies  studied  the  opinions  expressed  by  the
European Parliament.

On  28  May  1998  the  Council  approved  the  Convention,  signed  on  the  same  day  by  the
representatives  of  all  the  Member  States.

12. The  concerns  and  the  thinking  underlying  the  preparation  of  the  Convention  are  clear

from  the  Preamble,  which  highlights  four  aspects:

1. The  desire  to  introduce  uniform  modern  standards  for  jurisdiction  on  annulment,
divorce  and  separation  and  to  facilitate  the  rapid  and  automatic  recognition  among
Member  States  of  judgments  on  such  matters  given  in  the  Member  States.

2. The importance of laying down rules of jurisdiction concerning parental responsibility
over  the  children  of  both  spouses  on  the  occasion  of  such  proceedings  and  therefore
simplifying  the  formalities  governing  the  rapid  and  automatic  recognition  and
enforcement  of  the  relevant  judgments.

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3. The  need  to  bear  in  mind  the  principles  on  which  the  1968  Brussels  Convention  is
based;  this  Convention  is  therefore  influenced  by  the  Brussels  Convention  but  differs
in  so  far  as  the  matter  covered  is  different.

4. The  possibility  of  giving  jurisdiction  to  the  Court  of  Justice  of  the  European

Communities  to  interpret  the  provisions  of  the  Convention.

13. Two  characteristics  of  the  Convention  need  to  be  emphasised:

A. The  Convention  is  what  is  known  as  a  ‘double  treaty’  in  that  it  contains  rules  of
direct  jurisdiction  and  also  rules  for  the  recognition  and  enforcement  of  foreign
judgments.  It  is  modelled  on  the  Brussels  Convention,  which  was  at  the  time  a
revolutionary  step,  but  it  introduces  substantial  changes.  Rules  of  international
jurisdiction are thus laid down which have to be respected by the court of origin and
may lead it to decline jurisdiction where it does not consider that jurisdiction lies with
it  under  the  rules  of  the  Convention.  The  citizen  thus  enjoys  legal  certainty  and  a
climate  of  mutual  confidence  is  established  allowing  the  introduction  of  a  system  of
automatic  recognition  and  a  greatly  simplified  enforcement  system.

B. Once  the  Convention  has  been  adopted  in  the  Member  States  in  accordance  with
constitutional  requirements  and  has  entered  into  force  in  each  Member  State,  it  will
become  applicable  ex  officio.  This  means  that  it  is  compulsory  to  apply  all  the  rules
in  the  Convention  and  that,  between  the  States  party  to  it,  those  rules  will,  as  from
the  date  of  entry  into  force,  replace  all  other  national  or  contractual  provisions,
subject  only  to  the  limitations  resulting  from  the  Convention  itself  and  within  the
relevant  constitutional  framework.  The  mechanism  is  thus  at  once  founded  on  and
incorporated into each Member State’s national legislation. Situations not covered by
the  Convention  will  therefore  be  subject  to  national  law.

14. The  Convention  is  divided  into  seven  titles,  as  follows:

Title  I:

Scope

Title  II:

Jurisdiction

Title  III: Recognition  and  enforcement  of  judgments

Title  IV: Transitional  provisions

Title V: General provisions

Title  VI: Court  of  Justice

Title  VII: Final  provisions

It  will  be  obvious  that  the  core  of  the  Convention,  and  therefore  the  section  which  gave
rise  to  most  discussion,  lies  in  Titles  II  and  III  (jurisdiction  and  recognition  and
enforcement of judgments). Discussion of those issues also reflected, to a large extent, the
whole  debate  on  scope  (Title  I).

15. Title  I  of  the  Convention  (scope)  contains  only  one  Article  which  was  the  subject  of
lengthy  discussion  which  had  to  be  resolved  by  a  political  agreement  setting  the  material
scope  of  the  Convention  to  include  proceedings  on  divorce,  legal  separation  or  marriage
annulment  and  proceedings  relating  to  parental  responsibility  for  the  children  of  both
spouses  on  the  occasion  of  the  application.

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16. Title  II  contains  rules  of  direct  international  jurisdiction,  i.e.  rules  which  must  be
respected  by  the  court  of  origin  prior  to  a  judgment  in  matrimonial  proceedings.  Such
provisions  do  not,  however,  affect  the  distribution  of  territorial  jurisdiction  within  each
State  or  the  situations  of  States  the  legal  systems  of  which  have  not  been  unified.  The
existence  of  direct  jurisdiction  in  matrimonial  matters  is  undoubtedly  the  major
innovation  in  this  Convention.  Conventions  dealing  with  such  matters  are  normally
confined to the recognition and enforcement of judgments and the concomitant inclusion
of  rules  on  indirect  jurisdiction,  that  is  to  say  the  examination  of  the  jurisdiction  of  the
court  of  origin  to  be  made  by  the  court  of  the  State  in  which  recognition  is  sought.

This  Title  is  divided  into  four  sections:

(a) Section  1  contains  the  provisions  on  grounds  of  jurisdiction,  that  is  to  say  the
grounds  of  jurisdiction  stricto  sensu  (Articles  2  to  8).  The  central  provision  is
is
Article  2  which  establishes  the  grounds 
supplemented  by  Article  3  on  parental  responsibility  and  Article  4  regarding  the
particular  rule  relating  to  the  1980  Hague  Convention.  The  text  then  deals  with
counterclaims  (Article  5)  and  conversion  of  legal  separation  into  divorce  (Article  6)
and  Article  7  covers  the  exclusive  nature  of  jurisdiction  under  Articles  2  to  6  while
Article 8 covers residual jurisdiction and is parallel to the provision in Article 4 of the
1968  Brussels  Convention.

in  matrimonial  matters  and 

it 

(b) Section 2 (Articles 9 and 10) deals with examination as to jurisdiction in accordance
with the grounds in the Convention and as to whether the respondent has been able
to  arrange  for  his  defence.

(c) Section  3  (Article  11)  deals  with  lis  pendens  and  dependent  actions.

(d) Section  4  (Article  12)  deals  with  provisional  and  protective  measures.

17. Title III is the logical consequence of Title II and deals with recognition and enforcement
of  judgments.  At  first  sight,  it  might  seem  that  once  the  subjects  covered  in  the  earlier
Articles had been resolved, matters would be easy, but that was not the case. Discussions
focused  mainly  on  the  effects  of  automatic  recognition  in  relation  to  the  civil-status
records  and  the  grounds  of  non-recognition  and  non-enforcement.  In  the  same  way,
account had to be taken of the restriction of recognition to the dissolution of the link and
its  not  affecting  other  matters  (see  paragraphs  22  and  64).  The  problem  also  affects  the
need  for  enforcement  and  the  issue  is  in  turn  resolved  in  relation  to  the  scope.  The
procedure  for  enforcement  is  similar  to  that  in  the  Brussels  Convention.

18. Title  IV  contains  the  transitional  provisions  and  Title  V  the  general  provisions  while
Title  VI  relates  to  interpretation  by  the  Court  of  Justice  and  Title  VII  contains  the  final
provisions.

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III. ANALYSIS  OF  THE  PROVISIONS

TITLE  I

A. Scope

Article  1

Scope

19. This matter is the essential point which justifies the
very  existence  of  the  Convention  and  its  extent
which, as indicated in paragraph 12, includes rules
on 
and
enforcement  of  judgments  in  matrimonial  matters.
Determining  the  scope  involves  separate  issues,
relating on the one hand to the type of proceedings
conducted  and  on  the  other  to  matters  covered.

jurisdiction 

recognition 

and 

the 

20. As  to  the  type  of  proceedings,  paragraph  1  refers
to  ‘civil  proceedings’,  to  the  exclusion  of  all  other
types  of  proceedings,  since  these  are  the  normal
proceedings  conducted  in  matters  of  divorce,  legal
separation  or  marriage  annulment.  The  term  ‘civil’
is  nevertheless  intended  to  define  the  object  of  the
Convention clearly. It is to be understood not only
as  a  means  of 
the  administrative
including 
proceedings  referred  to  in  paragraph  2  but  also  as
a  means  of  excluding  all  merely 
religious
proceedings.  The  result  is  as  follows:

A.

or 

before 

certain 

occuring 

the  Statsamt 

proceedings 
in 

In  addition  to  civil  judicial  proceedings,  the
scope  of  the  Convention  also  includes  other
in
non-judicial 
matrimonial  matters 
States.
Administrative  procedures  officially  recognised
in  a  Member  State  are  therefore  included.  In
Denmark,  for  instance,  there  is,  in  addition  to
the  judicial  course  of  action,  an  administrative
(District
procedure  before 
the  Københavns
Council) 
Overpræsidium  (which  performs  the  same
functions as the Statsamt for Copenhagen). For
that procedure to apply, there must be grounds
for divorce and agreement between the spouses
both  on  the  divorce  and  on  matters  connected
with  it  (custody,  maintenance,  etc.).  Appeals
against  the  judgments  given  by  the  Statsamt
and  the  Københavns  Overpræsidium  lie  to  the
Ministry of Justice (Civil Law Directorate) and
may  then  be  subject  to  judicial  review  through
the normal procedure. In the same way, it may
be  noted  that  in  1983  Finland  adopted  a

relating 

to
system  under  which  matters 
custody,  residence  and  visiting  may  be  settled
outwith  the  legal  proceedings  by  agreement
the 
that  must  be  approved  by 
‘kunnan
sosiaalilautakunta/kommunal 
socialnämnd’
‘Laki
(communal  social 
lapsen  huollosta  ja  tapaamisoikeudesta’/‘Lag
angående vårdnad om barn och umgängesrätt’,
Law 361 of 8 April 1983, Sections 7, 8, 10, 11
and  12).

(welfare)  board): 

recognition  of  divorces 

For  that  reason,  the  text  stipulates,  as  did
Article  1  of  the  1970  Hague  Convention  on
the 
legal
separations, that the term ‘court’ shall cover all
the  authorities,  judicial  or  otherwise,  with
jurisdiction 
in  the
Member  States.

in  matrimonial  matters 

and 

B. The  Convention  excludes 

its  scope
religious proceedings, which may become more
frequent  as  a  result  of  immigration  (Muslim
and  Hindu  marriages,  for  instance).

from 

Article  42  safeguards  agreements  concluded
between  certain  Member  States  and  the  Holy
42
(see 
See 
paragraph  120).

on  Article 

commentary 

21.

In  the  matters  covered,  a  distinction  also  needs  to
be made between purely matrimonial questions and
questions  of  parental  responsibility.

22. The Convention is confined to proceedings relating
to  the  marriage  bond  as  such,  i.e.  annulment,
divorce  and  legal  separation.  So  the  recognition  of
divorce  and  annulment  rulings  affects  only  the
dissolution  of  the  marriage  link.  Dispite  the  fact
that they may be interrelated, the Convention does
not  affect  issues  such  as,  for  example,  fault  of  the
spouses,  property  consequences  of  the  marriage,
the  maintenance  obligation  or  other  possible
accessory  measures  (such  as  the  right  to  a  name,
etc.).  As  to  maintenance,  in  addition  to  other
international 
the
recognition  and  enforcement  of  judgments  are
covered  by  the  1968  Brussels  Convention  which
contains  a  specific  jurisdiction  rule  (Article  5(2))
is  also  the  Rome  Convention  of
and  there 
the  simplification  of
6  November  1990  on 
procedures 
the  recovery  of  maintenance
payments, which is no longer in force. On all other
issues the rules (national or international) currently

jurisdiction  and 

instruments, 

for 

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applicable  between  the  States  in  question  will
continue  to  apply.

23. The  most  complex  issue  is  parental  responsibility
since  in  some  States  the  legal  system  requires  that
the  decision  on  matrimonial  matters 
includes
parental responsibility, while in others matrimonial
and  child-protection  issues  follow  totally  separate
routes, that is to say the judgment on the marriage
does  not  necessarily  cover  parental  responsibility
and  may  even  refer  judgment  on  it  to  other
authorities. For that reason, separate problems had
to be faced and it was difficult to bring all States to
accept  the  text  in  paragraph  1(b)  which  includes
the  issue  in  this  Convention  rather  than  leaving  it
for  a  separate  text,  as  some  delegations  had
originally proposed. It is a question, however, only
of  the  matters  relating  to  parental  responsibility
that  appear  to  be  linked  to  the  matrimonial
proceedings  when 
(see
those 
Article  3(3)).

place 

take 

father  or  mother  living  in  another  Member  State.
The  consequence  of  that  provision  is  to  be  seen  in
Article  3(3),  which  determines  when 
the
jurisdiction 
responsibility
conferred on the authorities of the State in which a
is  to  be  taken  on  the  matrimonial
decision 
proceedings  is  to  cease.

regarding 

parental 

to 

the 

the 

scope  of 

The  decision 
the
restrict 
Convention  as  regards  parental  responsibility  to
judgments  concerning 
‘children  of  both
spouses’  will  not,  however,  prevent  Member  States
from  deciding  in  future  to  apply  jurisdictional
criteria  identical  to  those  laid  down  in  Article  3  to
‘children  of  the  family’  not  included  in  the  former
category.  The  jurisdictional  criteria  applicable  to
such  children  will  not  be  affected  by 
the
Convention  and  it  will  therefore  be  internal  law
that  will  govern  jurisdiction  and  the  recognition
and  enforcement  of  judgments  relating  to  such
children.

24. The  first  problem  to  be  resolved  was  the  inclusion
of  the  topic  of  parental  responsibility.  In  addition
to the differences in legal systems mentioned above,
difficulties  also  arose  from  the  fact  that  the  Hague
Conference was preparing the 1996 Convention on
child  protection.  The  consequences  of 
that
situation  are  reflected  in  the  text  of  Article  3.  The
concept  of 
responsibility’  presents
problems too, since it has to be defined by the legal
system of the Member State in which responsibility
is  under  consideration.  For  matters  concerning
maintenance, see paragraph 22. The term ‘parental
responsibility’,  which  is  a  difficult  one  to  translate
for  some  countries,  appears,  however,  in  various
international  Conventions  and  in  particular  in  the
1996  Hague  Convention  so  that  it  does  have  a
degree  of  unifying  potential.

‘parental 

25. The  second  problem  was  to  determine  which
children  were  affected  by  the  provision.  There  was
agreement that the provision covers both biological
and  adopted  children  of  the  couple.  Some  States
also  raised  the  possibility  of  dealing  with  parental
responsibility  not  just  for  children  of  both  spouses
but  also  what  are  called  ‘children  of  the  family’.
That  would  include,  for  instance,  the  children  of
one or other of the spouses from a previous union.
That  situation  is  known  in  English,  Scots  and
Netherlands  law.  The  view  that  prevailed  was  that
the  Convention  had  to  be  confined  to  children  of
both spouses, in view of the fact that the context is
that  of  measures  relating  to  parental  responsibility
taken in close conjunction with divorce, separation
or  annulment  proceedings.  The  other  solution
could  also  affect  the  fundamental  rights  of  the

26. Finally,  in  the  light  of  other  international  texts,
particularly  the  1989  United  Nations  Convention
on  the  rights  of  the  child  it  must  be  understood
that  each  child  is  to  be  considered  individually.
That  means  that  although  the  issue  is  included  in
general  terms  in  the  scope  of  the  Convention,  for
application  it  will  be  necessary  to  ensure  that  the
conditions  set  out  in  Article  3  apply  in  respect  of
each  one  of  the  children.

TITLE  II

B.

Jurisdiction

S e c t i o n   1

General  provisions

Article  2

Divorce,  legal  separation  and  marriage  annulment

27. The Forums of jurisdiction adopted are designed to
meet  objective  requirements,  are  in  line  with  the

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proceedings  without 

interests of the parties, involve flexible rules to deal
with mobility and are intended to meet individuals’
needs  without  sacrificing  legal  certainty.  It  is
therefore  not  surprising  that,  in  view  of  these
requirements,  this  Article,  along  with  Article  3,
occupied  a  large  part  of  the  lengthy  discussions
which led to the adoption of this text. The solution
adopted is the  result  of a difficult balance  between
some  of  the  jurisdictional  criteria  adopted.  It  was
necessary  to  establish  grounds  of  jurisdiction  in
becoming
matrimonial 
involved  in  any  examination  of  the  situation  in
which  the  validity  of  a  marriage  needs  to  be
considered  as  part  of  annulment  proceedings  when
one  of  the  spouses  is  deceased  or  after  the  decease
of  both  spouses,  since  that  situation  is  not  within
the  scope  of  the  Convention.  Such  situations  arise,
in  the  majority  of  cases,  as  preliminary  questions
relating  to  successions.  Instead,  it  will  be  resolved
by  the  international  instruments  applicable  in  the
matter, such as the 1970 Hague Convention on the
Recognition  of  Divorces  and  Legal  Separations,  or
according  to  the  internal  legislation  of  the  State
where  that  is  possible.

28. The  view  was  that,  unlike  the  1968  Brussels
Convention,  which  involves  an  interplay  of  the
general  rule  laid  down  in  Article  2  and  the  special
grounds  of  jurisdiction  set  out  in  Article  5,  the
peculiarity  of  the  matter  covered  in  this  instance
did  not  lend  itself  to  a  provision  similar  to
Article  2  of  the  Brussels  Convention  establishing  a
general 
should  a  hierarchy  be
established  between  the  grounds  adopted.  The
exclusion of a general forum and the establishment
of  a  concrete  list  of  forums  is  a  logical  step  since,
precisely  as  a  result  of  marriage  breakdown,  the
situation  constantly  changes  at  short  notice.

forum,  nor 

The  result 
is  that  the  grounds  adopted  are
objective,  alternative  and  exclusive,  in  the  manner
explained  below.

to 

the  examination  as 

Only  objective  grounds  appear  in  Article  2  and
they  are  subject 
to
jurisdiction provided for in Article 9. Therefore if a
spouse  initiates  proceedings  in  a  Member  State
whose  courts  do  not  have  jurisdiction  on  any  of
the  grounds  set  out  in  Article  2,  those  courts
cannot claim jurisdiction by reason of the fact that
the  other  spouse  makes  an  appearance  to  contest
the  application.  Instead  the  court  must  examine
whether  it  has  jurisdiction  and  if  it  does  not,  must
decline.  For  the  role  of  personal  choice,  see
paragraph  31  of  Article  2(1)(a).

The  grounds  in  Article  2  are  therefore  set  out  as
alternatives and inclusion in either (a) or (b) is not
to  be  interpreted  as  an  order  of  precedence.
Point  (a)  uses  habitual  residence  in  order  to
determine  international  jurisdiction,  whereas  the
Brussels  Convention  uses  domicile.  In  point  (b),
bearing  in  mind  the  specific  aspects  of  certain
national  legislation,  the  ground  of  jurisdiction  is
either  nationality  or  ‘domicile’  as  the  term  is  used
in  the  United  Kingdom  and  Ireland.  Under  the
1968  Brussels  Convention,  a  party’s  domicile  is
determined  in  accordance  with  the  internal  law  of
the  State  of  the  forum  (Article  52).  In  this  case,
there  was  discussion  as  to  whether  a  similar
provision should be included in relation to habitual
residence:  on  this  issue  see  paragraph  31.

29. The  grounds  set  out  in  this  Article  are  the  only
ones  which  can  be  used  for  the  matter  covered;
‘exclusive’  (see
they  can  therefore  be  termed 
commentary  on  Article  7).  That  term,  however,
cannot  be  understood  in  the  same  way  as  in  the
Brussels  Convention  where,  for  certain  matters
provided  for  in  Article  16  thereof,  only  the  courts
of a particular Member State have jurisdiction and
that  rule  takes  precedence  over  other  grounds.  In
the  case  we  are  dealing  with  here,  the  term
‘exclusive’  must  be  understood  as  meaning  that
only the grounds set out may be used and that they
are  alternatives  none  of  which  takes  precedence
over  the  rest.  The  list  is  therefore  exhaustive  and
closed.  It  is  therefore  not  necessary  to  include  a
rule similar to the one in Article 28(1) of the 1968
Brussels  Convention.

30. The  grounds  for  determining  the  jurisdiction  of  a
State’s  courts  to  rule  on  matrimonial  matters
coming  within  the  scope  of  the  Convention  fall
into two groups which are set out in points (a) and
(b)  respectively.  Paragraph  2  of  the  Article  applies
to  point  (b)  of  paragraph  1  and  also  to  the  last
indent 
the
(a) 
declaration,  see  Article  7  and  Article  8(2)).

the  effects  of 

in  point 

(for 

The grounds adopted are based on the principle of
a  genuine  connection  between  the  person  and  a
Member  State.  The  decision  to  include  particular
grounds  reflects  their  existence  in  various  national
legal  systems  and  their  acceptance  by  the  other
Member  States  or  the  effort  to  find  points  of
agreement  acceptable  to  all.

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create  any  problems 

31. Of  the  grounds  in  point  (a)  of  paragraph  1,  the
rule  that  international  jurisdiction  should  lie  with
the  courts  of  the  place  in  which  the  spouses  are
habitually  resident  at  the  time  of  application  (first
indent) is a ground widely accepted in the Member
States  and  will  undoubtedly  apply  in  the  great
majority of cases. Nor does the ground in the third
indent (place in which ‘the respondent is habitually
resident’) 
it
corresponds  to  the  general  ground  based  on  the
principle of actor sequitur. There was also a broad
consensus on the ground to apply in the event of a
joint  application  (fourth  indent)  as  the  application
may  be  made  to  the  authorities  of  the  place  in
which  either  spouse  is  habitually  resident;  in  that
case,  it  should  be  noted  that,  unlike  the  1968
Brussels Convention, this Convention allows only a
minor  role  for  the  spouses’  free  choice,  which
appears  only  in  this  limited  form:  it  is  logical  that
it  should  be  so  since  the  issue  is  matrimonial
proceedings.

that 

in 

32. Acceptance  of  the  other  grounds  in  this  paragraph
was more problematic. In principle, there should be
no objection to the jurisdiction of the courts of the
State  in  which  the  spouses  were  last  habitually
resident, in so far as one of them still resides there
(second  indent).  The  problem  arising  for  some
Member States was how to reconcile that situation
with  the  situation  of  the  other  spouse  who,  as  a
result  of  the  marriage  breakdown,  often  returns  to
his/her  country  of  domicile  or  nationality  prior  to
the marriage and there comes under the limitations
laid down in the fifth and sixth indents, provisions
which  will  undoubtedly  have 
consequences
regarding  lis  pendens  (see  Article  11).

in
Both  these  provisions  allow  forum  actoris 
exceptional cases on the basis of habitual residence
combined  with  other  elements.  That  is  why  the
fifth  indent  allows  jurisdiction  to  lie  with  the
courts  of  the  Member  State  in  which  the  applicant
is  habitually  resident  if  he  or  she  resided  there  for
at  least  a  year.  Since  some  Member  States  did  not
find  the  rule  set  out  in  those  terms  sufficient  and
bearing  in  mind  the  frequency  with  which  the
spouse’s new residence is in the State of nationality
or  of  ‘domicile’,  in  the  sense  in  which  this  term  is
used  in  the  United  Kingdom  and  Ireland,  the  sixth
indent  adds 
the
matrimonial proceedings heard by the courts of the
Member  State  in  which  the  applicant  is  habitually
resident  if  he  or  she  resided  there  for  at  least  six
months  immediately  before  the  application  was
made,  provided  that  that  State  is  the  State  of

the  possibility  of  having 

nationality  or  of  domicile  as  defined  in  the  United
Kingdom  and  in  Ireland.  That  provision  was
introduced  as  a  result  of  the  political  compromise
adopted  in  December  1997  following  a  formal
statement  by  some  States  that  acceptance  of  that
forum  was  an  essential  prerequisite  of  vital
importance  for  an  overall  compromise  solution.

to 

led 

is  an 

requirement 

The solution takes into account the situation of the
spouse  who  returns  to  his  or  her  country  but  does
not mean establishing a ground based solely on the
forum  of  the  applicant:  on  the  one  hand,  the
existence  of  nationality  or  ‘domicile’  demonstrates
that  there 
initial  connection  with  that
Member  State;  on  the  other  hand,  in  order  to
initiate  proceedings  in  that  Member  State,  he  or
she must have resided there for at least six months
immediately  before  the  application  was  made.  The
last 
a  discussion  of
establishment of habitual residence, taking account
of  the  situation  of  the  spouse  who  returns  to  the
country  of  origin  as  a  consequence  of 
the
breakdown  of  the  marriage.  The  existence  of  the
connection  will  be  assessed  by  the  court.  Although
the possibility of including a provision determining
habitual  residence  similar  to  the  one  in  Article  52
of  the  1968  Brussels  Convention  was  discussed,  in
the  end  it  was  decided  not  to  insert  any  specific
provision  on  the  matter.  However,  although  not
applicable  under  the  1968  Brussels  Convention,
particular account was taken of the definition given
on  numerous  occasisons  by  the  Court  of  Justice,
i.e. ‘the place where the person had established, on
a  fixed  basis,  his  permanent  or  habitual  centre  of
interests,  with  all  the  relevant  facts  being  taken
into  account  for  the  purpose  of  determining  such
residence’.  Other  proposals  were  therefore  rejected
whereby  it  would  be  sufficient  for  the  applicant  to
have  his  or  her  habitual  residence  there  for  a  total
of  at  least  one  year  in  the  five  years  immediately
before  the  application  was  made,  even  when
combined  with  nationality  or  ‘domicile’.

Moreover,  the  mutual  confidence  which  underlies
the  preparation  of  this  Convention,  like  the  1968
Brussels  Convention,  should  be  sufficient 
to
overcome  the  existing  reluctance  to  have  a  case
heard  by  the  courts  of  another  State.

33. Another  alternative  to  the  grounds  listed  above,
which  for  organisational  reasons  appears  in  a
separate  point  (point  (b)  of  paragraph  1),  is  to

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allow  the  matrimonial  proceedings  to  take  place
before the courts of the State of nationality of both
spouses or of ‘domicile of both spouses’ established
on  a  long-term  settled  basis.  This  provision  merits
particular  attention  and  comment.

In  the  first  instance,  it  is  worth  emphasising  that
the  nationality  or  ‘domicile’  must  be  common  to
both  spouses.  Some  States  wanted  to  allow  that
condition  to  apply  to  only  one  spouse.  That
possibility was rejected since it would be equivalent
to  pure 
forum  actoris,  often  with  no  real
connection  whatsoever  with  the  State  in  question,
and  would  thus  be  contrary  to  the  spirit  of  the
Convention.

the  possibility  of  having 

Establishing 
the
authorities  of  the  State  of  nationality  or  ‘domicile’
of both spouses handle proceedings does not mean
that  the  courts  of  the  State  can  in  every  instance
examine whether one or other of those criteria has
been  met.  What  is  intended  is  that  in  the  light  of
their internal system, States will adopt one or other
of  the  criteria.  Hence,  just  as  common  nationality
may  be  acceptable  to  Spain,  ‘domicile’  will  be  the
criterion  for  the  United  Kingdom  and  for  Ireland.

It  is  precisely  for  that  reason  that  paragraph  2  of
this Article requires the Member States to stipulate
in  a  declaration  made  when  giving  the  notification
referred  to  in  Article  47(2)  whether  it  will  be
applying the criterion of nationality or of ‘domicile’
referred  to  in  paragraph  1(b).

The  Convention  is  silent  on  the  consequences  of
dual nationality, so the judicial bodies of each State
will  apply 
the
framework  of  general  Community  rules  on  the
matter.

their  national 

rules  within 

34. The  problems  arising  from  the  many  language
versions  of  the  Convention  made  it  necessary  to
make  some  special  arrangements  for  the  term
‘domicile’  as  it  appears  in  this  text  but  only  in
relation  to this Convention. That is the purpose of
Article 2(3). The problems and solutions appearing
in  the  1968  Brussels  Convention  have  been
adverted  to.  In  this  instance,  when  extending  the
Convention  to  matrimonial  matters  and  having  to
include  nationality  as  a  criterion  for  determining
international  jurisdiction,  it  was  not  possible  to
follow  the  1968  criteria.  While  nationality  is  a
criterion  which  does  not  raise  any  major  problems
as to meaning, domicile presented a more complex

problem  since  it  appears  in  this  text  with  the
meaning it has in the United Kingdom and Ireland.
This is the reason why in most texts the equivalent
of the word ‘domicile’ appears in inverted commas
to indicate that it has a special meaning. There can
therefore  be  no  possibility  of  equating  this  term
with  habitual 
in
residence  as 
paragraph  1.

referred 

to 

for 

application, 

the  purposes  of 

In  a  detailed  document,  the  United  Kingdom
delegation  provided  clarification  on  the  concept  of
‘domicile’,  purely 
the
Convention  without  attempting  to  give  a  definitive
account.  The  essential  purpose  of  domicile  is  to
connect a person with the country in which he has
his  home  permanently  or  indefinitely.  It  is  used  so
as to make that person subject to the law and legal
system  of  that  country  for  several  purposes  of
concerning
broad 
important  matters  affecting  family  relations  and
family  property.  In  United  Kingdom  law,  the  rules
for  determining  a  person’s  domicile  operate
generally  to  ensure  that  every  person  has  a
domicile,  and  only  one  domicile,  at  all  times.  In
addition  to  rules  for  determining  the  domicile  of
children  (domicile  of  origin),  there  are  rules  for
establishing  the  domicile  of  adults,  either  by
acquisition  of  a  new  domicile  (domicile  of  choice)
or  by  revival  of  the  domicile  of  origin.  The  same
principles  apply  in  Irish  law.

principally 

Article  3

Parental responsibility

35. Article  1  having  established  that  proceedings
relating  to  parental  responsibility  (for  the  use  of
this  term  see  commentary  on  Article  1)  which  are
seen  to  be  connected  with  the  proceedings  relating
to  divorce,  legal  separation  or  marriage  annulment
fall  within  the  scope  of  the  Convention,  Article  3
determines  where  and  under  what  conditions
authorities of the State, the judicial bodies of which
have  jurisdiction  in  matrimonial  proceedings  in
accordance  with  the  grounds  set  out  in  Article  2,
have  jurisdiction  in  a  matter  relating  to  parental
responsibility  over  a  child  of  both  spouses.
Article  3 
three  paragraphs:
paragraph  1  establishes  the  jurisdiction  of  the
authorities of the Member State whose courts have
jurisdiction  in  the  matrimonial  proceedings  and
paragraph 2 deals with cases where the child is not
habitually 
that  Member  State.
in 
Paragraph  3  sets  a  time  limit  for  such  jurisdiction.

thus  comprises 

resident 

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36. The structure  and  content  of this  provision  are the
product  of  difficult  negotiation,  both  within  the
to  worldwide
Community  and 
1996  Hague
provisions, 
particularly 
fact 
Convention.  The 
the  Community
itself  to  children  habitually
limits 
Convention 
resident 
its
the  Member  States 
in 
compatibility  with  the  Hague  Convention.

relation 
the 

facilitates 

that 

in 

The  agreement  between  the  Member  States  to
include  this  matter  within  the  scope  of  the
Convention  simply  transferred  the  problem  to  the
establishment  of  grounds  of  jurisdiction,  since
while  there  were  no  problems  where  the  child  is
habitually  resident  in  the  State  whose  authorities
have  jurisdiction  in  the  matrimonial  proceedings,
the same does not apply to cases where the child is
habitually  resident  in  another  Member  State.

The problem is further complicated by the fact that
Article  52(2)  of  the  1996  Hague  Convention
provides  that  that  Convention  does  not  affect  the
possibility  for  one  or  more  Contracting  States  to
conclude  agreements  which  contain,  in  respect  of
children  habitually  resident  in  any  of  the  States
Parties  to  such  agreements,  provisions  on  matters
governed  by  that  Convention.  As  a  result,  where
both  Conventions  are  in  force,  the  Convention  to
which  this  report  relates  will  take  precedence  in
respect of children resident in Member States of the
European Union which are party to it, whereas the
Hague  Convention  will  apply  to  other  cases.

37. There  are  no  problems  in  relation  to  Article  3(1)
which  establishes  jurisdiction  in  a  matter  relating
to  parental  responsibility  over  a  child  of  both
spouses where the child is habitually resident in the
Member  State  whose  authorities  also  exercise
jurisdiction  in  the  matrimonial  proceedings.  It
needs  to  be  made  clear  that  in  no  case  does  that
provision mean that it must be the same authorities
in the State concerned who rule on the matrimonial
issue  and  on  the  parental  responsibility:  the  rule  is
intended  only  to  establish  that  the  authorities
deciding  on  both  matters  are  authorities  of  the
same  State.  In  practice,  they  will  be  the  same
authorities  in  some  States  and  separate  authorities
in  others.  For  the  purposes  of  the  Convention,  the
only  point  of  interest  is  that  they  be  authorities  of
the  same  Member  State,  with  due  regard  for  the
internal  distribution  of  competence.

38. Paragraph  2  sets  out  the  conditions  under  which
the  authorities  of  the  Member  State  exercising
jurisdiction on the divorce also have jurisdiction to
decide on parental responsibility where the child is
resident  not  in  that  State  but  in  another  Member
State.  Both  of  the  following  conditions  have  to  be
met: at least one of the spouses must have parental
responsibility  in  relation  to  the  child  and  the
jurisdiction  of  the  courts  must  have  been  accepted
by  the  spouses  and  must  be  in  the  best  interests  of
from
the 
Article  10(1)  of  the  1996  Hague  Convention,
which  guarantees  that  there  is  no  contradiction
between  Article  3(2)  of  the  Convention  under
discussion  and  the  relevant  provisions  of  the  said
Hague  Convention.  The  relevant  provision  of  the
Hague  Convention  says  practically  the  same  thing,
the  only  difference  being  that  in  addition  to
requiring  that  one  of  the  parents  have  parental
responsibility,  it  also  requires  that  at  the  time  of
commencement  of  the  proceedings,  one  of  the
parents  habitually  resides  in  that  State.

child.  This  provision 

taken 

is 

The  difference  derives  from  the  differing  subject
matters  of  the  two  Conventions:  the  Hague
Convention  deals  with  protection  of  children,
whereas  the  Convention  to  which  this  report
relates deals with matrimonial matters and for that
reason the parents’ connection with the territory of
a State for the purposes of determining jurisdiction
in  matrimonial  matters 
is  determined  by  the
grounds  set  out  in  Article  2.  Article  3(2)  is
designed to cover one particular situation in which
the  best  solution  is  to  use  the  same  grounds  as  in
the  Hague  Convention.

39. The  Convention  chose  not  to  enshrine  perpetuatio
jurisdiccionis  for  the  divorce  forum  in  relation  to
protection of the child of both spouses and for that
reason  paragraph  3  determines  when 
the
jurisdiction  conferred  by  paragraphs  1  and  2  will
cease,  listing  three  alternative  events  any  of  which
will  cause  it  to  cease.  This  provision  follows
Article  10(2)  of  the  1996  Hague  Convention,  the
object  being  to  avoid  any  contradiction  between
the  two  texts.

(a) Subparagraph 

(a)  deals  with 

the  basic
assumption  that  the  judgment  allowing  or
refusing  the  application  for  divorce, 
legal
separation  or  marriage  annulment  has  become
final,  that  is  to  say  that  no  further  appeal  or
review  of  any  kind  is  possible.  Once  that
happens, 
to
subparagraph  (b),  Article  3(1)  and  (2)  no
longer  apply.  Parental  responsibility  will  then
have  to  be  determined  either  by  national  law
or  by  the  relevant  international  Conventions.

and  without 

prejudice 

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(b)

(c),  subparagraph 

In  addition  to  this  well-known  situation,  and
without  prejudice  to  the  residual  rule 
in
subparagraph 
(b)  adds
another situation where, on the date on which
the  judgment  on  the  matrimonial  proceedings
in  the  sense  that  such  a
becomes  final, 
judgment  cannot  be  the  subject  of  any  sort  of
appeal,  proceedings  in  relation  to  parental
responsibility  are  still  pending  and  provides
that 
jurisdiction  will  not  cease  until  a
judgment  in  the  responsibility  proceedings  has
become  final;  in  any  event  in  this  situation
jurisdiction  on  parental  responsibility  may  be
exercised  even  if  the  judgment  allowing  or
legal
refusing  the  application  for  divorce, 
separation  or  marriage  annulment  has  become
final.  It  was  necessary  to  insert  this  provision
in  this  Convention  because  it  is  conceivable
that when different authorities within the same
country  are  involved  or  in  cases  before  the
same  authorities, 
the
the 
matrimonial  proceedings  may  be  final  at  a
time  when 
the  proceedings  on  parental
responsibility  have  not  yet  come  to  an  end.
the  parental  responsibility
Jurisdiction  on 
therefore  ceases  on  whichever  of  those  two
dates  applies.  It  is  therefore  understood  that
proceedings  on  parental  responsibility,  once
initiated,  must  continue  until  a  final  judgment
is  reached.  The  fact  that  the  application
relating to the marriage has been resolved may
not prejudice the expectations created both for
the  parents  and  for  the  child  that  the  parental
responsibility proceedings will terminate in the
Member  State  in  which  they  began.  Although
not expressly stated, the intention is that there
should  be  no  perpetuatio  jurisdiccionis  but
that  proceedings  on  parental  responsibility
in  connection  with  matrimonial
initiated 
proceedings  should  not  be  interrupted.

judgment  on 

(c) Subparagraph  (c)  deals  with  the  residual  or
concluding  situation  where  the  proceedings
have  come  to  an  end  for  another  reason  (for
example, 
is
the  application 
withdrawn  or  one  of  the  spouses  dies).

for  divorce 

Article  4

International  child  abduction

40. One  of  the  risks,  and  perhaps  the  major  risk,  to
which the child of both spouses is exposed when a
marriage  breaks  down  is  being  taken  out  of  the
country by one of the parents, with all the stability
and  protection  problems  which  that  entails.  To
resolve  such  problems,  very  special  attention  was

the  civil  aspects  of 

paid to the Hague Convention of 25 October 1980
on 
international  child
abduction.  But  Conventions  on  the  protection  of
children  such  as  the  1996  Hague  Convention  and
this  Convention  on  matrimonial  matters,  which
involve  questions  of  protection  for  the  child  of
both spouses at times of crisis, may have a negative
effect on the return of the child if appropriate steps
are  not  taken.  That  is  the  purpose  of  Article  4  of
the  Convention  under  discussion.

41.

that 

In  that  instance,  a  special  rule  of  jurisdiction  has
been  established  referring  to  the  1980  Hague
Convention,  creating  a  situation  different  from  the
relation with certain other Conventions established
in  Article  39.  That  Article  states 
this
Convention  supersedes  other  Conventions  between
States  which  are  party  to  both,  whereas  Article  4
contains  a  rule  to  the  effect  that  the  jurisdiction
conferred by Article 3 must be exercised within the
limits  established  in  the  1980  Hague  Convention
and  particularly  Articles  3  and  16  thereof.  That
safeguards  the  habitual  residence  as  the  ground  of
jurisdiction where, as a result of wrongful removal
or  retention,  there  has  in  fact  been  a  change  in
habitual residence.

It  is  important  for  various  reasons  to  refer  to  both
Articles.  In  the  first  instance,  because  Article  3  of
the  1980  Hague  Convention  provides  that  the
removal  or  the  retention  of  a  child  is  to  be
considered  wrongful  where:

‘(a)

is 

it 
in  breach  of  rights  of  custody
attributed to a person, an institution or any
other  body,  either  jointly  or  alone,  under
the  law  of  the  State  in  which  the  child  was
habitually  resident  immediately  before  the
removal  or  retention,  and

(b) at  the  time  of  removal  or  retention  those
rights  were  actually  exercised,  either  jointly
or  alone,  or  would  have  been  so  exercised
but  for  the  removal  or  rentention.

of 

rights 

custody  mentioned 

The 
in
subparagraph  (a),  may  arise  in  particular  by
operation  of  law  or  by  reason  of  a  judicial  or
administrative  decision,  or  by  reason  of  an
agreement  having  legal  effect  under  the  law  of
that  State’.

In  the  second  instance,  the  reference  is  important
because  the  consequences  of  wrongful  removal  or

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retention,  for  the  interested  parties,  are  dealt  with
in  Article  16  which  provides  that:

‘After receiving notice of a wrongful removal or
retention of a child in the sense of Article 3, the
judicial  or  administrative  authorities  of  the
Contracting  State  to  which  the  child  has  been
removed  or  in  which  it  has  been  retained  shall
not  decide  on  the  merits  of  rights  of  custody
until it has been determined that the child is not
to  be  returned  under  this  Convention  or  unless
an  application  under  the  Convention  is  not
lodged  within  a  reasonable  time  following
receipt  of  the  notice’.

Accordingly,  the  habitual  residence  has  changed
and  it  might  be  thought  appropriate  to  use  the
grounds of jurisdiction allowed in this Convention,
the  priority  role  accorded  to  Article  16  of  the
Hague  Convention  would  prevent  any  steps  being
taken  which  would  alter  parental  responsibility
prior  to  any  decision  on  return  or  non-return.

the 
if 

This  Article  assumes  that  the  Member  States  are
parties 
1980  Hague  Convention.
to 
Accordingly, 
in  future  new  Member  States
accede,  it  would  be  advantageous  if  they  acceded
to  the  1980  Hague  Convention  if  they  have  not
already  done  so.

separation  is  an  obligatory  step  prior  to  divorce
and  a  stated  period  of  time  must  usually  elapse
between  the  separation  and  the  divorce.  That
distinction  is,  however,  unknown  in  other  legal
systems.

The  Working  Party  arrived  at  this  provision  after
having checked whether there were other situations
in which applications might arise to supplement or
update  a  judgment  in  matrimonial  proceedings.
The  finding  was  that  only  conversion  of  legal
separation  into  divorce  should  be  covered  by  this
provision.

such 

instances, 

in  accordance  with 

In 
the
provisions  of  the  Convention  it  is  possible  to
obtain  the  divorce  either  before  the  courts  of  the
State  having  jurisdiction  under  Article  2  or  before
the courts of the State in which the separation was
obtained,  it  being  clearly  understood  that  the  fact
that  conversion  is  possible  does  not  itself  depend
on  the  Convention  but  is  a  possibility  allowed
under  the  internal  law  of  the  State  in  question.

Article  5

Counterclaim

Article  7

Exclusive  nature  of  jurisdiction  under  Articles  2
to  6

42. This  Convention  contains  the  classic  rule  on
counterclaims,  giving  jurisdiction  to  the  court  in
which  the  initial  proceedings  are  pending  should  a
counterclaim  be  made.  The  limited  scope  of  the
Convention  and  the  frequency  with  which  matters
covered by it arise in connection with other matters
make  it  necessary  to  specify  that  that  rule  applies
only  when 
initial
the  subject  of  both 
proceedings  and  the  counterclaim  come  within  the
scope  of  this  Convention.  This  provision  has  to  be
seen 
(see
commentary  on  that  Article  in  relation  to  lis
pendens)  in  order  to  differentiate  between  the
situations  covered  by  each  Article  although  in
practice  they  may  in  many  cases  produce  identical
effects.

conjunction  with  Article  11 

the 

in 

Article  6

Conversion  of  legal  separation  into  divorce

43. The  conversion  of  legal  separation  into  divorce  is
fairly frequent in some legal systems. In some State

in 

for 
in  connection  with  Article  2 

44. The essential characteristics of the jurisdiction rules
this  Convention  have  been
provided 
examined 
(see
paragraph 29); that is to say, only the criteria listed
in  Articles  2  to  6  may  be  used,  as  alternatives  and
without  any  order  of  precedence.  However,  this
Article  is  intended  to  emphasise  the  exclusive
nature  of  the  grounds  contained  in  earlier  Articles
jurisdiction  of  a  State’s
for  determining 
authorities.  It  should  be  noted  that  the  exclusive
nature  of  the  jurisdiction  established  refers  only  to
matrimonial  matters  and  questions  of  parental
responsibility  connected  with  such  cases  and  does
not  therefore  affect  the  rules  of  jurisdiction  in
matters  of  protection  of  minors  where  they  are
independent  of  the  matrimonial  proceedings.  The
exclusive  nature  should  be  understood  without
prejudice  to  the  rules  laid  down  in  Articles  8(1)
and  38(2).

the 

45. Where  the  grounds  under  Article  2  are  either  the
spouse’s habitual residence or his or her nationality
or 
in
‘domicile’  (see  statement  provided  for 
Article  2(2),  to  which  paragraph  33  refers),  an

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in  Article  8.  Accordingly, 

application  may  be  made  to  a  court  only  in
accordance  with  the  rules  laid  down  in  the  earlier
Articles. That limitation on the rules of jurisdiction
opens the way to the residual jurisdiction provided
for 
if  the  United
Kingdom  adopts  the  criterion  of  domicile  and
Spain  that  of  nationality,  a  spouse  of  British
nationality  domiciled 
in  Spain  and  habitually
resident in Brazil would not be subject to the rules
laid down in Article 7 and could still be subject to
an  application  made  in  accordance  with  Article  8.

Article  8

Residual  jurisdiction

46. This  Article  corresponds  to  the  rules  of  exorbitant
jurisdiction  referred  to  in  Articles  3  and  4  of  the
1968  Brussels  Convention.  There  are,  however,
differences  between  the  two  texts.  The  nature  of
the  jurisdictions  laid  down  in  the  aforementioned
Articles  renders  unnecessary  a  provision  such  as
Article  3  of  the  1968  Brussels  Convention.

the 

is  met, 

jurisdiction 

criteria  of 

47. Following  the  provision  in  Article  7  (exclusive
nature  of  jurisdiction  under  Articles  2  to  6),  this
Article  deals  with  arrangements  existing  in  the
national legal system which can be used only in the
context  of  this  Article.  For  some  States,  when  one
of  the  spouses  resides  in  a  non-Member  State  and
none  of 
the
jurisdictional 
should  be
Convention 
determined  in  accordance  with  the  law  applicable
in the Member State in question. To deal with that
situation,  the  solution  adopted  is  an  assimilatory
one  whereby  the  applicant  who  is  a  national  of  a
Member State who is habitually resident within the
territory  of  another  Member  State  may,  like  the
nationals of that State, avail himself of the rules of
jurisdiction 
State.  The
prerequisite  for  applying  that  provision  is  that  the
respondent  does  not  have  his  habitual  residence  in
a  Member  State  and  does  not  have  his  ‘domicile’
within the territory of a Member State and is not a
national  of  a  Member  State  according  to  the
criteria  applicable  to  the  case  in  accordance  with
the  statement  provided  for  in  Article  2(2)  (see
above).

applicable 

that 

in 

Such  jurisdiction  is  termed  ‘residual’  in  view  of  its
nature  and  the  place  it  occupies  in  relation  to  the
the
grounds  of 

established  by 

jurisdiction 

Convention.  That  description  was  regarded  as
preferable  to  ‘extra-Community  disputes’.  In  view
of the function that that Article performs, like that
of Article 4 of the Brussels Convention, contrary to
the  practice  followed  in  Article  3  of  the  1968
Brussels  Convention,  a  list  of  these  types  of
jurisdiction  has  not  been  included  in  this  Article.

like 

the  Netherlands,  have  no
Some  States, 
jurisdiction in their internal legal system which can
be  defined  as 
‘residual’  for  the  purposes  of
Article  2  of  the  Convention.

Such  jurisdiction  does,  however,  exist  in  other
national  systems.  Some  examples  are  set  out
below.

In  Germany,  the  rules  of  jurisdiction  provided  for
in  sections  (1),  (3)  and  (4)  of  Article  606a  of  the
‘Zivilprozessordnung’ 
could  be  described  as
residual;  they  provide  that  German  courts  have
international  jurisdiction  when  (1)  one  spouse  is
German  or  was  German  when  the  marriage  took
place;  (2)  one  spouse  is  stateless  and  is  habitually
resident 
is
habitually  resident  in  Germany,  except  where  any
judgment  reached  in  their  case  could  not  be
recognised  in  any  of  the  States  to  which  either
spouse  belonged.

in  Germany;  or 

(3)  one  spouse 

In  Finland,  under  Section  8  of  the  ‘Laki  eräistä
perheoikeudellisista
kansainvälisluontoisista 
suhteista’/‘Lag  angående  vissa 
familjerättsliga
förhållanden  av  internationell  natur’  (International
Family  Relations  Act)  revised  in  1987,  Finnish
courts  will  hear  matrimonial  cases  even  where
neither  spouse  is  habitually  resident  in  Finland  if
the  courts  of  the  State  of  habitual  residence  of
either  of  the  spouses  do  not  have  jurisdiction  or  if
application  to  the  courts  of  the  State  of  habitual
residence  would  cause  unreasonable  difficulties
and,  furthermore,  in  the  circumstances  it  would
appear  to  be  appropriate  to  assume  jurisdiction
(forum  conveniens).

in  Article  22(3)  of  the 

In  Spain  the  only  example  would  be  one  of  the
rules  contained 
‘Ley
Orgánica  del  Poder  Judicial’  (Law  on  the  judicial
the
system)  of  1  July  1985  which  allows 
application to be made in Spain when the applicant
is  Spanish  and  is  resident  in  Spain  but  does  not
meet any of the requirements in Article 2(1) of this
Convention such as the express or tacit submission
referred to in Article 22(2). Apart from that, all the
other  grounds  for 
in
matrimonial matters which exist in Spanish law are

international 

jurisdiction 

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contained in the Convention, these being that both
spouses are habitually resident in Spain at the time
of  the  application  or  that  both  spouses  are  of
Spanish  nationality,  whatever 
their  place  of
residence,  provided  that  the  application  is  made
either  jointly  or  with  the  agreement  of  the  other
spouse.

In  France,  Article  14  of  the  Civil  Code  would  give
French  courts  jurisdiction  if  the  petitioner  had
French nationality.

In  Ireland  the  courts  would  have  jurisdiction  in
matters  of  annulment  (Section  39  of  the  Family
Law  Act,  1995)  divorce  (Section  39  of  the  Family
Law  (Divorce)  Act,  1996),  and  legal  separation
(Section  31  of  the  Judicial  Separation  and  Family
Law  Reform  Act,  1989),  when  either  of  the
spouses 
the  purposes  of
Article  2(3),  in  the  State  on  the  date  of  institution
of  proceedings.

is  domiciled, 

for 

is 

conducting 

relevant
United  Kingdom 
proceedings,  United  Kingdom  courts  have  a  wide
discretion  to  decline  jurisdiction,  provided  that
those  proceedings  continue  and,  in  addition,  that
the  proceedings  continue  before  a  judicial  body
that  has  jurisdiction  under  its  national  legislation.

vissa 

äktenskap 

In  the  case  of  Sweden,  the  jurisdictional  rules  of
Swedish courts for divorce matters are to be found
internationella
om 
in 
‘lag 
the 
rättsförhållanden 
och
rörande 
förmynderskap’  (Act  on  certain  international  legal
relations  concerning  marriage  and  guardianship)
1904, as amended in 1973. As regards Article 7 of
the Convention, Swedish courts have jurisdiction in
matters  of  divorce  if  both  spouses  are  Swedish
is
citizens, 
habitually resident in Sweden or has been so at any
time  since  reaching  the  age  of  18  or  if,  in  other
cases, the government gives its consent to the cases
being  heard  in  Sweden.  The  government  can  give
its consent only if one of the spouses is Swedish or
the  petitioner  cannot  bring  the  case  before  the
courts  of  the  State  of  which  he  is  a  national.

if  the  petitioner 

is  Swedish  and 

In Italy, the rules laid down in Articles 3, 4, 32 and
37  of  Law  218  of  31  May  1995  on  the  reform  of
the  Italian  system  of  private  international  law  are
of  this  nature.

jurisdiction  based  on 

In  the  United  Kingdom,  a  distinction  has  to  be
made  between  divorce,  separation  and  annulment
proceedings  and  custody  orders  relating  to  such
proceedings.  With  regard  to  divorce,  annulment
and  legal  separation  proceedings,  this  Article  may
cover  grounds  of 
the
‘domicile’ of either party in the United Kingdom at
the  time  the  application  is  made  or  on  habitual
residence  for  a  year  immediately  preceding  that
date.  In  the  case  of  divorce  and  separation
proceedings,  the  Sheriff  Courts  in  Scotland  have
jurisdiction  if  one  party  is  either  resident  in  the
place  for  40  days 
immediately  prior  to  the
submission  of  the  application  or  has  resided  there
for  a  period  of  at  least  40  days  ending  not  more
than  40  days  before  that  date  and  has  no  known
residence  in  Scotland  on  that  date.  For  custody
orders  contained  in  divorce,  annulment  and  legal
separation  judgments,  United  Kingdom  judicial
bodies,  including  the  Sheriff  Courts  in  Scotland,
will  have  jurisdiction,  but  if  a  court  outwith  the

48. Taking  into  account  the  grounds  of  jurisdiction
laid  down  in  Articles  2  to  6  of  the  Convention,
paragraph 1 sets the boundary between grounds of
an  exclusive  nature  established  by  the  Convention
and  the  principle  of  applying  internal  rules  of
jurisdiction,  thus  demonstrating  the  geographical
limits  of  the  Convention.  The  requirements  set  out
in  Article  8(2)  must  be  examined  in  the  following
sense:

(a)

the applicant must be a national of a Member
State  habitually  resident  in  another  Member
State.  Hence  the  principle  of  assimilation
between  citizens  of  Member  States  for  the
purposes  of  paragraph  1;

(b)

the  respondent  must  meet  two  conditions:  on
the  one  hand  he  or  she  must  be  habitually
resident  outside  the  Member  States;  on  the
other  hand,  he  or  she  must  not  be  a  national
of  a  Member  State  or  have  his  or  her
‘domicile’  in  a  Member  State  (declaration
provided  for  in  Article  2(2)).  Both  conditions
are  concurrent,  otherwise  the  situation  would
be  one  requiring  application  of  one  of  the
grounds  in  Article  2.

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S e c t i o n   2

C. Examination  as  to  jurisdiction  and  admissibility

Article  9

Examination  as  to  jurisdiction

49.

It  is  worth  emphasising  the  special  importance
attaching in this Convention to the examination as
to  jurisdiction  carried  out  automatically  by  the
court  of  origin,  without  any  need  for  any  party  to
request  it.  Internal  legal  systems  are  particularly
sensitive  to  matrimonial  matters,  more  sensitive
than  they  are  to  the  property  matters  covered  by
the  1968  Brussels  Convention.

Bearing  in  mind  the  major  differences  between
internal  regulations  in  the  Member  States  and  the
interplay  of  choice-of-law  rules  applicable,  it  is
easy  to  imagine  that  the  fact  that  the  grounds  of
jurisdiction set out in Article 2 are alternatives may
lead  some  spouses  to  attempt  to  make  their
in  matrimonial  matters  before  the
application 
courts  of  a  State  which,  by  virtue  of 
its
choice-of-law  rules,  applies  the  legislation  most
favourable  to  their  interests.  For  that  reason,  the
court  first  seised  must  examine  its  jurisdiction,
which might not happen if the issue were discussed
in  that  Member  State  only  as  an  exception.

On this topic, see also Ireland’s particular problem
regarding  recognition  of  foreign  judgments  in  the
commentary  on  Article  48.

51. The  provision  is  based  on  Article  20  of  the  1968
Brussels  Convention  and,  on  the  same  topic,  the
provisions  in  the  1965  Hague  Convention  on  the
service  abroad  of 
judicial  and  extrajudicial
documents  in  civil  or  commercial  matters.  The
court,  when  applying  one  of  the  grounds  of
jurisdiction  provided  for  in  the  Convention,  will
examine  its  jurisdiction  where  the  respondent  does
not  enter  an  appearance.  The  wording  adopted  is
simpler than in other Conventions but the essential
elements  are  covered:

(a) an obligation on the court to stay proceedings,

not  merely  an  option;

(b)

the  respondent’s  rights  of  defence  to  be
examined  by  the  court,  both  as  to  whether  he
has  been  able  to  receive  the  document  ‘in
sufficient time to enable him to arrange for his
defence’  and  as  to  whether  ‘all  necessary  steps
have  been  taken  to  this  end’.

The  recent  signing  of  the  Convention  of  26  May
1997  on  the  service  in  the  Member  States  of  the
European  Union  of 
judicial  and  extrajudicial
documents  in  civil  or  commercial  matters  has  led
to  a  provision  that,  once  it  has  entered  into  force,
Article  19  thereof  will  be  applied  instead  of  the
provisions  in  paragraph  1.  Bearing  in  mind  the
possibility  of  the  early  application  of  the  1997
Convention, there will be a gradual substitution of
the  European  Community  Convention  for  the
Hague Convention and there will not, therefore, be
a general entry into force. As Articles 15 and 16 of
the  Hague  Convention  are  reproduced  in  the  1997
Convention  the  change  of  Convention  applicable
will  not  entail  any  significant  changes.

Article  10

S e c t i o n   3

Examination  as  to  admissibility

D. Lis  pendens  and  dependent  actions

50. The  purpose  of  this  provision  is  to  guarantee  the
right  of  defence.  It  is  not  sufficient  to  examine
jurisdiction  alone,  as  provided  for  in  the  previous
Article;  it  is  also  necessary  to  establish  a  similar
rule  for  examining  admissibility,  involving  staying
the proceedings so long as it is not shown that the
respondent  has  been  able  to  receive  the  document
instituting 
the  proceedings  or  an  equivalent
document  in  sufficient  time  to  enable  him  to
arrange  for  his  defence,  or  that  all  necessary  steps
have  been  taken  to  this  end.  The  intention  is  that
court  can  thus  satisfy  itself  that  international
jurisdiction  is  well  founded  and  so  avoid  possible
causes  of  refusal  of  recognition  wherever  possible.

Article  11

Lis  pendens  and  dependent  actions

52. This  provision  is  based  on  Article  21  of  the
Brussels Convention and is related to Article 13 of
the  1996  Hague  Convention  with  regard  to  child
protection.  It  was  one  of  the  provisions  on  which
discussion  continued  until  the  very  last  moment
and  there  were  two  reasons  for  the  difficulty.

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On  the  one  hand,  the  case-law  of  the  Court  of
Justice of the European Communities on Article 21
of the 1968 Brussels Convention has demonstrated
the  problems  caused  by  that  provision  as  currently
worded  and  the  problems  of  delimitation 
in
relation  to  dependent  actions,  as  many  cases  have
been  drawn  towards  lis  pendens.  It  is  no  accident
that  that  Article  of  the  Brussels  Convention  will
require  special  attention  during  the  joint  review  of
the  Brussels  and  Lugano  Convention  set  in  motion
in January 1998, even if as yet only in the form of
preliminary studies which cannot affect the text we
are  dealing  with  here.

jurisdiction,  it  is  stipulated  that  the  court  second
seised  shall  of  its  own  motion  stay  its  proceedings
until such time as the jurisdiction of the court first
seised  is  established.

54. Paragraph  2  contains  an 
to  deal  with 

innovation  designed
specifically 
in
the  differences 
legislation  between  the  various  Member  States  on
the  admissibility  of  proceedings  for  separation,
divorce  or  marriage  annulment.  The  provision  in
that  paragraph  therefore  relates  to  what  are  called
‘dependent  actions’  and  could  be  termed  ‘false  lis
pendens’.

On  the  other  hand,  the  differences  between  the
legal systems in the Member States are particularly
evident  on  this  topic.  Account  will  need  to  be
taken of the situation in States such as Sweden and
Finland,  where 
the
dissolution  of  marriage  between  living  spouses  is
divorce  and  national  law  makes  no  provision  for
separation  or  annulment,  so  that  some  divorce
proceedings 
in  those  countries  correspond  to
annulment  proceedings  under  other  legal  systems.

the  only 

form  of 

legal 

The  difference  in  rules  between  the  Member  States
also  affects  the  very  notion  of  lis  pendens.  The
notion  is  more  restricted  in  some  States  (France,
Spain,  Italy  and  Portugal)  requiring  the  same
subject-matter,  the  same  cause  of  action  and  the
same  parties,  and  broader  in  others  which  require
only  the  same  cause  of  action  and  the  same
parties.

The  lis  pendens  mechanism  is  designed  to  avoid
parallel  actions  and  consequently  the  possibility  of
irreconcilable judgments on the same issues and the
objective was to provide a rule which, on the basis
of  the  basic  principle  of  prior  temporis,  could
provide  a  solution  for  the  various  possibilities  in
family  law,  which  differ  from  those  in  property
law.  The  traditional  lis  pendens  arrangement  did
not  solve  all  the  problems  and  there  was  therefore
a need to find a new wording which would achieve
the  objective  desired.  After  lengthy  discussion,  it
was  the  Luxembourg  Presidency  which  proposed
the  text  finally  accepted  by  the  Member  States.

53. Paragraph  1  contains  the  traditional  lis  pendens
rule,  that 
is  to  say  the  prior  temporis  rule
applicable  to  all  proceedings  covered  by  the
Convention,  provided  the  subject-matter  and  cause
of  action  are  the  same  between  the  same  parties.
risk  of  negative  conflict  of
To  avoid 

the 

The  solution  adopted  was  proposed  by 
the
Luxembourg  Presidency  as  a  compromise  solution
and  should  be  examined  particularly  in  connection
with  paragraph  3  since  the  cases  covered  by
paragraph  1  are  relatively  rare.  The  solution
adopted  was  regarded  as  preferable  to  the  other
solution  proposed  which  would  have  involved
retaining  the  force  of  attraction  of  the  jurisdiction
producing  the  greatest  effects  in  order  to  provide
certainty  and  prevent  problems  for  those  States
which  do  not  have  legal  separation  or  annulment.
For  others,  more  flexible  rules  on  dependent
actions,  similar  to  those  of  the  1968  Brussels
Convention,  would  have  been  preferable.

It  might  seem  on  a  first  reading  that,  since  it
applies  the  same  solution  as  in  paragraph  1  to
proceedings not involving the same cause of action,
paragraph  2  is  repetitive  and  superfluous.  That
conclusion  would,  however,  be  erroneous  since,
unlike  paragraph  1  which  also  includes  parental
responsibility,  paragraph  2  is  deliberately  confined
separation  and  marriage
to  divorce, 
annulment:  only  in  relation  to  them  does  the  lis
pendens rule apply where the cause of action is not
the  same.

legal 

55. Paragraph  3  sets  out  the  consequences  of  the
acceptance  of  jurisdiction  by  the  court  first  seised.
The provision contains a general rule, which is that
the  court  second  seised  shall  decline  jurisdiction  in
favour  of  that  court.  It  also  contains  a  special  rule
whereby the party who brought the relevant action
before the court second seised may, if he so wishes,
bring  that  action  before  the  court  which  claims
jurisdiction  because  it  was  seised  earlier.  The  first
words in the second paragraph of paragraph 3, ‘in
that case’, must therefore be interpreted as meaning
that  only  when  the  court  second  seised  declines
jurisdiction  does  the  party  have  the  possibility  of
bringing the action before the court having claimed
jurisdiction  because  it  was  first  seised.  The  rule  in

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to 

confined 

paragraph  3  is  part  of  the  political  agreement
reached  in  December  1997  and  the  Working  Party
therefore 
it
itself 
appropriately.  It  should  be  noted,  however,  that
some members of the Working Party did not agree
with  the  broad  scope  given  to  that  paragraph  and
were  in  favour  of  having  the  possibility  offered  to
the  applicant  in  the  second  action  limited  to  the
cases  covered  by  paragraph  2.

expressing 

although  Swedish  law  does  not  provide  for  it,
divorce  produces  effects  which  are  more  extensive
than  and 
the  effects  of
separation.

superimposed  on 

In  any  event,  it  needs  to  be  noted  that  the  rule  in
paragraph  3  of  this  Article  differs  from  the  one  in
Article  5  (counterclaim).  The  rule  in  Article  5  is  a
rule of jurisdiction whereas the one in Article 10 is
a  provision  applying  the  rules  of  jurisdiction  in
dependent  actions.  We  must  also  remember  that  it
will  operate  differently  since  there  will  be  cases  in
which  no  counterclaim  would  be  possible  (for
instance because the time is not right), but it would
still  be  possible  to  apply  the  rule  in  Article  11(3).

S e c t i o n   4

E. Provisional  and  protective  measures

Article  12

56. The  consequence  of 

the 

including 

rule  on
dependent  actions  is  the  disappearance  of  an
Article  on  related  actions  given  that  it  was  not
considered  that  there  were  cases,  involving  the
subject  matter  of  the  Convention,  which  would  be
outside  the  framework  of  the  dependent  action
provision.

57.

second 

It  should  be  emphasised  that,  under  this  rule,  the
court 
always  decline
seised  must 
jurisdiction  in  favour  of the court  first  seised, even
when  the  internal  law  of  that  Member  State  does
not  provide  for  separation  or  annulment.  That
would  be  the  case,  for  instance,  if  an  application
for  divorce  were  presented  in  Sweden  and  an
application  for  annulment  in  Austria:  the  Austrian
court  would  have  to  decline  jurisdiction  even
law  makes  no  provision  for
though  Swedish 
annulment.  Once  the  divorce  ruling  was  final  in
Sweden,  however,  the  interested  party  could  apply
to a court in Austria, in order to ensure that those
effects  of  the  divorce  which  would  be  null  under
Austrian  law  would  have  the  necessary  effects  ex
tunc  as  opposed  to  divorce  which  has  only  effects
ex  nunc,  bearing  in  mind,  moreover,  that  the
recognition  of  the  scope  of  this  Convention  is
restricted 
(see
paragraph  64).  The  same  principle  would  apply  to
the  reverse  situation.  That  is  to  say  that  the
Convention  will  not  prevent  an  Austrian  judgment
on annulment from being the object, in Sweden, of
a  subsequent  court  judgment  to  the  effect  that  the
annulment  will  have  the  effect  of  a  divorce  ruling
in  Sweden.  The  same  problems  would  not,
however,  arise  in  relation  to  separation  since,

changes 

status 

civil 

to 

in 

than 

58. As  regards  the  rule  on  provisional  and  protective
measures, it must be observed that it is not subject
to  the 
jurisdictional  rules  of  the  Convention
because it refers to proceedings encountered within
its  scope  and  this  Article  applies  only  to  urgent
cases.  This  provision  is  taken  from  Article  24  of
the  1968  Brussels  Convention,  although  it  goes
further 
that  Article.
the  provisions  of 
Although  Article  24  of  the  Brussels  Convention
presents problems which are under consideration in
the  current  review  of  the  Brussels  and  Lugano
Conventions,  it  was  considered  preferable  not  to
innovate  on  this  occasion  or  to  incorporate  any  of
the  suggestions  made  on  the  matter.  In  this
instance,  as  in  some  others,  the  question  of  how
any 
equivalent
to 
provision 
in  the  Brussels  Convention  can  be
incorporated  will  be  left  until  later.

improvements  made 

the 

59. As  to  the  content  of  the  provision,  it  should  be
noted  that  although  provisional  and  protective
measures  may  be  adopted  in  connection  with
proceedings  within  the  scope  of  the  Convention
and are applicable only in urgent cases, they relate
to  both  persons  and  to  property  and  therefore
touch  on  matters  not  covered  by  the  Convention,
in  the  case  of  actions  provided  for  in  national
rules.  The  differences  with  respect  to  the  Brussels
Convention  are  significant,  as  in  the  Brussels
Convention  the  measures  to  which  Article  24(a)
refers  are  restricted  to  matters  within  the  scope  of
the  Convention:  those  in  (b)  on  the  other  hand,
have  extraterritorial  effects.  The  measures  to  be
adopted  are  very  broad  since  they  can  affect  both
persons  and  assets  in  the  State  in  which  they  are
adopted,  something  which  is  very  necessary  in
matrimonial disputes. The Convention says nothing

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type  of  measures  or  about 

their
the 
bout 
connection  with 
the  matrimonial  proceedings.
These  measures,  accordingly,  affect  even  matters
that  do  not  come  within  the  scope  of  the
Convention. This is a rule which enshrines national
law  jurisdiction,  thereby  derogating  from  the  rules
laid  down  in  the  first  part  of  the  Convention.  The
provision makes it clear that such measures may be
adopted  in  one  State  even  though  the  court  of
another State has jurisdiction to hear the case. The
measures  will,  of  course,  cease  to  apply  once  the
court  having  jurisdiction  gives  a  judgment  on  the
basis  of  one  of  the  grounds  of  jurisdiction  set  out
in  the  Convention  and  that  judgment  is  recognised
the  Convention.  Other
(or  enforced)  under 
measures  relating  to  matters  excluded  from  the
scope  of  the  Convention  will  continue  to  apply
until  appropriate  judgments  are  given  by  a  court
with 
for  example,  marriage
contracts.

jurisdiction 

for, 

The  rule  laid  down  in  this  Article  is  confined  to
establishing  territorial  effects  in  the  State  in  which
the  measures  are  adopted.

TITLE  III

F. Recognition  and  enforcement

Article  13

Meaning  of  the  term  ‘judgment’

60. The  provisions  in  this  Article  have  been  taken
partly  from  Article  25  of  the  1968  Brussels
Convention. The aim is to define what is meant by
a  ‘judgment’,  for  the  purposes  of  recognition  and
enforcement.  Thus,  in  addition  to  the  general
definition  in  paragraph  1,  paragraph  2  makes  it
clear that the provisions of Title III shall also apply
to  the  determination  of  the  amount  of  costs  and
expenses  of  proceedings  and  any  order  concerning
such  costs  and  expenses.  For  the  purposes  of  this
Article  account  must  be  taken  of  the  fact  that  it
also  covers  judgments  given  by  the  bodies  referred
to  in  Article  1(2)  (see  paragraph  20(A)).

In  some  language  versions,  one  term  is  used  to
refer  to  both  the  judgment  adopted  in  the  state  of

origin  and  that  relating  to  execution.  In  other
versions  different  terms  are  used  for  each.

There was much discussion as to whether the term
‘judgment’  covered  only  positive  decisions  or
whether  it  also  covered  negative  decisions  adopted
in  a  Member  State,  that  is  to  say  decisions  which
did  not  grant  a  divorce, 
legal  separation  or
marriage  annulment.  Taking  into  account,  on  the
one  hand,  the  mandate  received,  which  was  to
prepare  a  Convention  to  facilitate  recognition  and
enforcement  of  divorces,  legal  separations  and
marriage  annulments,  and,  on  the  other  hand,  the
major  differences  between  the  Member  States  on
divorce  and  separation,  it  is  understood  that  the
word  ‘judgment’  refers  only  to  positive  decisions,
that  is  to  say  those  that  do  grant  a  divorce,  legal
separation  or  marriage  annulment.  As  regards
decisions  on  parental  responsibility  that  come
within the scope of the Convention and are subject
to  the  jurisdictional  rules  laid  down  in  Article  3,
some  positive  judgments  may  have  negative  effects
with  regard  to  parental  responsibility  for  a  person
different  from  the  person  in  whose  favour  the
judgment  was  given.  Clearly  a  judgment  of  that
sort  comes  within  the  scope  of  the  Convention.

judicata.  Under  Belgian 

Special  attention  must  be  given 
to  divorce
judgments  given  by  Netherlands  and  Belgian
courts. Under Netherlands law, a divorce judgment
must  be  registered  if  the  divorce  is  to  be  effective.
If  registration  is  not  effected  within  six  months  of
the  date  of  the  judgment,  the  judgment  loses  its
law
effect  as  a  res 
(Articles  1275,  1303,  1309  and  1310  of  the  ‘Code
judiciaire’/‘Gerechtelijk  wetboek’) 
the  enacting
terms  of  the  divorce  or  legal  separation  judgment
must  be  recorded  in  the  register  of  marital  status
within  one  month  of  notification  of  the  judgment
to  the  registrar;  this  requirement  does  not  appear
for  marriage
in  connection  with 
annulment;  however, 
the
judgment  only  prevents  the  divorce  from  being
relied  on  as  against  third  parties.

judgments 
failure 

record 

to 

It  is  for  national  legislation  to  determine  what  is
‘to  parental
meant  by  measures 
responsibility’.  For 
the
see 
commentary  on  Article  1.

concept, 

relating 

this 

In  relation  to  costs,  the  provision  in  Article  38(1)
regarding  the  application  of  the  1954  Hague
Convention  on  Civil  Procedure  and,  where
appropriate,  the  1980  Hague  Convention  on
International  Access  to  Justice  needs  to  be  taken
into  account.

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61. Paragraph  3 

is  designed  to  meet  a  specific
objective.  In  the  1968  Brussels  Convention,  the
title on recognition and enforcement is followed by
a  special  title  on  authentic  instruments  and  court
settlements  of  which  recognition  or  enforcement
can be refused only if contrary to public policy. At
the beginning, consideration was given to doing the
same  in  this  Convention  or  to  deleting  the  rule.
However, after examination of the national laws, it
became  apparent  that  while  in  some  States  there
were  no  concrete  instances  in  which  this  rule
would  be  necessary,  in  others  it  was  essential,  for
example  situations  existing  in  Scotland  or  custody
agreements  approved  by 
the  administrative
authority  with  jurisdiction  in  Sweden  or  Finland.
Examination  of  the  possibilities  which  existed  led
to  the  conclusion  that  there  were  no  reasons  to
justify copying the Brussels Convention exactly and
it  was  considered  more  appropriate  to  include  a
third  paragraph  in  Article  13  applying  the  same
treatment to ‘documents which have been formally
drawn  up  or  registered  as  authentic  instruments
and  are  enforceable  in  one  Member  State  and  also
settlements  which  have  been  approved  by  a  court
in the course of proceedings and are enforceable in
the Member State in which they were concluded‘ as
to  the  ‘judgments’  referred  to  in  paragraph  1.

In  the  United  Kingdom,  authentic  documents,
although  recognised  in  all  jurisdictions  for  the
purposes  of  enforcement,  can  only  be  created
under  the  Scottish  legal  system.  They  must  be
documents  whose  enforceability  is  established  by  a
public  authority  and  can  be  recorded  in  public
registers  existing  in  the  Higher  Courts  in  Scotland,
known  as  the  Books  of  Council  and  Session  and
the  Books  of  the  Sheriff  Court.  Entry  in  those
books  gives  the  document  the  force  of  a  court
judgment.  Such  instruments  in  Scottish  family  law
the
practice  may 
reorganisation  of  the  spouses’  affairs  after  the
divorce.  They  will  accordingly  include  matters  not
covered  by  this  Convention,  such  as  matrimonial
property,  but  they  may  include  matters  relating  to
the  children  that  do  not  come  under  parental
responsibility, such as residence, visiting rights and
other  settlements.  The  intention  is  to  distinguish  it
from  the  agreements  that  may  be  concluded  by
unmarried  parents 
their
parental  responsibility  towards  their  children,  as
laid  down  in  Article  4  of  the  Children  (Scotland)
Act,  1995.

in  connection  with 

to  any  aspect  of 

refer 

Although  in  practice  the  public-order  exception
may  be  sufficient,  when  its  use  is  considered
necessary,  to  prevent  such  settlements  having  an
effect  on  civil  status  in  another  State,  it  did  not
seem  sufficient  to  include  a  provision  such  as  the

one  in  Article  50  of  the  Brussels  Convention  since
in  matters  of  family  law,  there  may  be  other  cases
of  non-recognition  (for  example  Article  15(2)(b))
and  therefore  the  question  of  non-recognition  of
settlements  needs  to  be  examined  in  conjunction
of
of 
the 
with 
judgments.

non-recognition 

grounds 

S e c t i o n   1

G. Recognition  of  a  judgment

Article  14

Recognition

62. The  provisions 

in  this  Article  are  based  on
Article  26  of  the  1968  Brussels  Convention.
However, there is a fundamental difference in view
of  the  matters  covered  by  this  Convention,  and  it
relates  to  the  effects  of  recognition.  While  there
was  agreement  on  the  provision  in  paragraph  1
which  involves  automatic  recognition,  in  the  sense
of  recognition  that  does  not  imply  any  specific
procedure,  in  all  the  Member  States  of  judgments
given  in  each  one,  the  same  level  of  agreement  did
not  exist  on  the  effects  which  should  follow,
particularly in relation to the most important issue,
the  updating  of  civil-status  records.

63. That  is  why,  after  lengthy  discussion,  agreement
was  reached  on  Article  14(2)  which  requires  no
special  procedure  for  updating  the  civil-status
records of a Member State, the existence of a final
judgment  relating  to  divorce,  legal  separation  or
marriage annulment given in another Member State
being  sufficient  for  the  purpose.  The  recognition
involved  is  therefore  not  judicial  but  is  equivalent
to  recognition  for  the  purposes  of  civil-status
records.

In the wording of this provision account was taken
of  Article  8  of  the  Convention  of  8  September
1967  on  the  Recognition  of  Decisions  Relating  to
the  Validity  of  Marriages,  prepared 
the
International  Commission  on  Civil  Status.  That  is
an 
it  will  be  much
appreciated  by  European  citizens  since  that  is  the
effect  most  frequently  sought  and,  once  the
Convention  enters  into  force,  updating  civil-status
records  without  the  need  for  any  additional

important  change  and 

in 

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save 

time  and  money, 

thus
decision  will 
representing  a  considerable  advance  over  the  1968
Brussels  Convention.  It  should  be  noted  that  the
judgment  must  be  a  final  one  against  which  no
further  appeal  lies,  and  that  too  is  different  from
the  1968  Brussels  Convention  situation.  See
Article  33(3)  regarding  the  documents  to  be
presented.

the 

64. As specified in Article 1 in relation to the scope of
the  Convention  in  terms  of  matters  covered,  it  is
sufficient  to  repeat  here  that  the  recognition
referred  to  in  this  Article  does  not  affect  questions
of 
fault  of  spouses,  marriage  contract,
maintenance  or  any  other  consequences  of  an
economic or any other nature included in the same
judgment.  It  is  a  question,  therefore,  only  of
link  of
recognition  of  the  dissolution  of  the 
marriage  or  of 
(see
paragraph  22).  For  provisional  measures,  see
Article  12(59).

separation 

legal 

the 

65. As  specified  in  the  1968  Brussels  Convention,  the
recognition  of  the  foreign 
judgment  may  be
accepted or contested, and the procedure set out in
paragraph 3 for enforcement will be followed. The
concept  of  an  ‘interested  party’  entitled  to  apply
for  a  decision  as  to  whether  the  judgment  should
or should  not  be recognised must be interpreted in
the  broad  sense  under  the  national  law  applicable
and  may  include  the  public  prosecutor  or  other
similar  bodies  where  permitted  in  the  State  in
which  the 
is  to  be  recognised  or
contested.

judgment 

non-recognition or non-enforcement. In view of the
matter  dealt  with  in  the  Convention,  the  grounds
of non-recognition provided for in Article 23 of the
1996  Hague  Convention  also  had  to  be  taken  into
consideration  in  order  to  facilitate  harmonious
application  of  both  Conventions  when  the  time
comes. Whereas some States wanted the grounds of
non-recognition to be optional, most States were in
favour of making them compulsory as in Article 27
of the 1968 Brussels Convention. Those rules need
to  be  seen  in  conjunction  with  the  limitations  set
out  in  Article  16  and  the  reference  to  Article  43.

2 

the 

out 

sets 

grounds 

68. The  structure  of  this  Article  may  seem  rather
surprising.  Paragraph  1  sets  out  the  grounds  of
non-recognition of judgments relating to a divorce,
legal  separation  or  marriage  annulment,  while
of
paragraph 
non-recognition  of  judgments  relating  to  parental
responsibility given on the occasion of matrimonial
proceedings.  The  reason  for  the  division  is  that,
although  both  types  of 
judgment  are  closely
connected  with  the  matrimonial  proceedings,  they
may  have  been  given  by  different  authorities,
depending  on 
internal  distribution  of
jurisdiction  within  the  State  of  origin.  Another
reason for the division may be that the objective of
the  matrimonial  proceedings  and  the  objective  of
the  parental-responsibility  proceedings  differ  in
such  a  way  that  the  grounds  for  non-recognition
cannot  be  the  same  in  both  cases.  It  was  therefore
advisable  to  split  the  grounds  of  non-recognition
into  two  paragraphs.

the 

66. The  provision  on  recognition  as  an  incidental
question  comes  from  Article  26  of  the  Brussels
Convention  with  some  amendments.  It  is  for
reasons  of  simplicity  that  the  courts  hearing  the
main  case  also  have  jurisdiction  to  determine
recognition  of  a  judgment  of  incidental  form.

69.

Article  15

Grounds  of  non-recognition

67. This  Article  corresponds  to  Article  27  of  the  1968
Brussels  Convention  and  contains  the  grounds  for

in  Article  27(1)  of 

In  line  with  normal  practice,  the  first  ground  of
non-recognition of judgments relating to a divorce,
legal  separation  or  marriage  annulment  is  the  fact
that it is manifestly contrary to public policy in the
State  in  which  recognition  is  sought,  something
Member States do not want to give up even though
experience  demonstrates  that  the  corresponding
provision 
the  Brussels
Convention  has  been  of  no  practical  significance.
the  basic
Nevertheless, 
principles  that  justify  the  considerations  of  public
order  is  less  in  cases  involving  property  than  in
family  cases.  It  needs  to  be  borne  in  mind,  too,
that  Article  18  of  this  Convention  prevents  a
judgment  being  reviewed  as  to 
its  substance,
Article  17  prohibits  non-recognition  of  a  foreign
judgment  because  the  law  of  the  Member  State  in

sensitivity 

regarding 

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which  such  recognition  is  sought  would  not  allow
divorce, legal separation or marriage annulment on
the same facts and Article 16(3) states that the test
of  public  policy  may  not  be  applied  to  the  rules
relating  to  jurisdiction.

71.

the 

judgment  with  other
Irreconcilability  of 
judgments is dealt with in two separate provisions,
points  (c)  and  (d)  of  paragraph  1.  In  contrast  to
the provisions of Article 27(5) of the 1968 Brussels
Convention,  there 
is  no  requirement  for  the
objective  and  the  ground  to  be  identical.

Nevertheless, it should be noted that the States are
extremely  sensitive  on  this  issue  on  account  of  the
major discrepancies between their laws on divorce.
Those  Member  States  in  which  dissolution  of  the
marriage  bond  is  easiest  fear  that  their  judgements
may not be recognised in Member States with more
stringent rules. To provide adequate guarantees for
both groups of States, a system is being established
whereby,  on  the  one  hand,  non-recognition  on
grounds  that  recognition  is  manifestly  contrary  to
the  public  policy  of  the  State  in  which  recognition
is  sought  is  retained  (Article  15(1)(a))  and,  on  the
other  hand,  Article  17  stipulates  that  recognition
may  not  be  refused  on  the  grounds  that  divorce,
legal  separation  or  marriage  annulment  would  not
be  allowed  on  the  same  facts  (see  commentary  on
Article  17).  At  the  time  of  recognition,  the  court
having  jurisdiction  must  examine  the  judgment
given  in  the  State  of  origin  in  the  light  of  the
provisions  referred  to  in  the  preceding  paragraph.
That  solution  is  based  on  the  arrangement  under
the 1970 Hague Convention on the Recognition of
Divorces  and  Legal  Separations  to  which  some
Member  States  are  party.

On  this  issue,  see  also  the  statement  by  Ireland  (in
connection  with  Article  46(2),  with  due  regard  for
the  provision 
to
examination  as  to  jurisdiction  by  the  court  of
origin).

in  Article  9  which  refers 

The first refers to irreconcilability with a judgment
given  in  proceedings  between  the  same  parties  in
the  Member  State  in  which  recognition  is  sought,
regardless  of  whether  the  judgment  in  the  latter
State  predates  or  postdates  the  judgment  given  in
the  State  of  origin.  A  special  problem  arises  when
one  judgment  is  on  divorce  and  the  other  is  on
separation.  An  example  may  clarify  the  situation.
Consider  the  case  of  a  separation  judgment  given
in  State  A  and  a  subsequent  divorce  judgment
given  in  State  B.  If  recognition  of  the  second
judgment  is  sought  in  State  A,  recognition  cannot
be  refused  on  grounds  of  its  irreconcilability  with
the  judgment  given  previously  in  State  A,  since
separation  may  be  considered  a  preliminary  to
divorce  and,  consequently,  there  would  be  not
conflict  with  a  subsequent  divorce 
judgment.
However, if recognition of the separation judgment
given  in  State  A  were  sought  in  State  B,  where  the
marriage  had  been  dissolved  by  a  divorce
judgment,  the  judgment  would  have  to  be  rejected
since the separation judgment had been replaced by
a  divorce  judgment  in  State  B.  The  advantage  of
this  interpretation  is  that  it  guarantees  that  the
matrimonial  situation  of  the  spouses  will  be
considered  the  same  throughout  the  15  Member
States.  Any  other  interpretation  would  mean  that
the  spouses  could  be  considered  divorced  in  14
States  but  only  as  legally  separated  in  State  A.

70. Paragraph 

the 

1(b) 

ground 

non-recognition.  We 

of
includes 
non-recognition  which  gave  rise  to  the  highest
number of cases of non-recognition under the 1968
Brussels  Convention  (Article  27(2))  and  therefore
to  the  largest  number  of  problems  and  questions
put  to  the  Court  of  Justice  in  relation  to  grounds
of 
to
non-recognition  in  cases  where  the  judgment  was
given  in  default  of  appearance,  if  the  respondent
was  not  notified  properly  and  in  good  time  to
defend  himself.  A  point  has  been  added  to  the
original  provision.  It  provides  that  the  judgment
must  be  recognised,  as  is  the  normal  consequence
of  the  proper  operation  of  the  Convention,  where
the respondent has accepted it unequivocally, as for
instance  by  remarrying.

referring 

are 

in 

The  second  provision  relates  to  cases  in  which  the
judgment,  whether  given  in  another  Member  State
or  in  a  non-Member  State  between  the  same
parties,  meets  two  conditions:  (a)  it  was  given
earlier;  (b)  it  fulfils  the  conditions  necessary  for  its
in  which
recognition 
recognition  is  sought.  An  example  may  clarify  the
situation 
In
non-member State E a separation judgment is given
that  meets  the  requirements  for  recognition  in
State B. Subsequently, a decision granting the same
spouses  a  divorce  is  given  in  Member  State  C,
requesting recognition of that judgment in Member

this  provision  refers. 

the  Member  State 

to  which 

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State  B.  In  this  situation,  the  divorce  judgment
given in Member State  C is  not  irreconcilable with
the  previous  legal  separation  judgment  given  in
non-member  State  E  and  is  therefore  recognised  in
Member State B. In the opposite case, that is to say
if  a  divorce  judgment  is  given  in  non-member
State  E  and  subsequently  a  separation  judgment  is
given  in  Member  State  C,  Member  State  B  will
refuse  to  recognise  Member  State  C’s  judgment  on
the  ground  that  it  is  irreconcilable  with  a  divorce
judgment  given  in  non-member  State  E  which
meets  the  requirements  for  recognition  in  Member
State  B.

72. Paragraph 2 covers the grounds of non-recognition
of  judgments  relating  to  parental  responsibility
in  the  broad  sense  and  therefore
understood 
including  not  only  court 
judgments  but  also
decisions  of  whatever  kind  by  whatever  authority
provided  that  they  are  closely  connected  with  the
divorce.  In  addition  to  the  general  comment  above
on  the  justification  for  the  separation  of  these
grounds  of  non-recognition  from  those  relating  to
matrimonial judgments, the grounds included merit
some  further  comment.

73. The provision on public policy, which also appears
in  paragraph  2(a),  corresponds  exactly  to  the
provision  in  Article  23(2)(d)  of  the  1996  Hague
Convention, in that it makes it impossible to refuse
recognition  purely  because 
is
manifestly  contrary  to  public  policy  and  requires
that  consideration  be  given  to  taking  the  best
interests  of  the  child  into  account  as  well.

judgment 

the 

20 November 1989 on the Rights of the Child and
in  particular  Article  12  thereof,  which  provides:

‘1.  The  States  party  shall  guarantee  any  child
who  is  in  a  position  to  form  a  judgment  of  his
own  the  right  to  express  an  opinion  freely  on
any matter affecting him, and that due account is
taken  of  the  child’s  opinion,  in  the  light  of  his
age  and  maturity.

to  be  heard 

2.  To  that  end  the  child  shall  be  given  an
opportunity 
legal  or
administrative  proceedings  affecting  him,  either
directly  or  through  a  representative  or  an
appropriate  body,  in  accordance  with  the  rules
of  procedure  of  national  law’.

in  any 

Finally, points (e) and (f) deal with non-recognition
irreconcilability  with  another
on  grounds  of 
judgment  and  lay  down  different  rules,  depending
on  whether  the  judgment  is  given  in  the  Member
State  in  which  recognition  is  sought  or  in  another
Member  State  or  in  the  non-Member  State  of  the
habitual  residence  of  the  child.  Solely  with  regard
to parental responsibility, the judgment with which
the  judgment  for  which  recognition  is  sought  is
irreconcilable  must  have  been  given  later  since
earlier judgments will have been taken into account
in  the  judgment  connected  with  the  divorce.  The
objective  is  to  prevent  the  contradiction  which
could  result,  for  instance,  between  a  judgment
given  in  another  Member  State  regarding  divorce
and  custody  and  a  judgment  given  in  the  forum
denying paternity. The commentary on Article 3(3)
also  needs  to  be  taken  into  account  in  this
connection (end of jurisdiction of the court hearing
the matrimonial proceedings in matters of parental
responsibility).

Default of appearance is dealt with in point (c) and
the  comments  on  point  (b)  of  paragraph  1  also
apply.

As in the 1996 Hague Convention (Article 23(2)(b)
and (c)), the grounds of non-recognition include (in
points  (b)  and  (d))  the  fact  that  the  child  was  not
given  an  opportunity  to  be  heard  or  that  any
person  claiming  that  the  judgment  infringes  his  or
her  parental  responsibility  was  not  given  an
opportunity  to  be  heard.  The  child  must  be  heard
in  accordance  with  the  rules  applicable  in  the
Member  State  concerned,  which  must  include  the
the  United  Nations  Convention  of
rules 

in 

Article  16

Non-recognition  and  finding  of  facts

74. Further  to  Article  15  paragraph  1  of  this  Article
provides that a judgment shall not be recognised in
a  case  provided  for  in  Article  43  (see  commentary
on  Article  43,  paragraph  125),  which  corresponds
to  Article  59  of  the  1968  Brussels  Convention.
Article 43 enables a Member State not to recognise
a  judgment  given  in  another  Member  State  where
the 
is  not  founded  on  grounds  of
jurisdiction  specified  in  Articles  2  to  7  but  solely
on  grounds  of  national  law,  in  accordance  with
Article  8.  For  that  purpose,  however,  the  Member
State and the third country must have concluded a
Convention  on  recognition  and  enforcement  of

judgment 

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is  applicable  between  them.
judgments  which 
Article  16(1)  is  therefore  an  exception  to  the
recognition  of  judgments  adopted  in  a  Member
State  within 
the  residual
jurisdiction  which  may  apply  under  Article  8.

framework  of 

the 

Article  18

Non-review  as  to  substance

75. This  provision  means  that  the  Member  State  in
which  recognition  is  sought  must  examine  the
grounds  of  jurisdiction  on  the  basis  of  which  the
judgment  in  the  Member  State  of  origin  has  been
adopted.  The  court  is,  however,  subject  to  certain
limitations  in  the  matter.  Under  paragraph  2,  the
court  in  which  recognition  is  sought  is  bound  by
the  findings  of  fact  on  which  the  court  of  the
Member  State  of  origin  based  its  jurisdiction.
Secondly, under paragraph 3 it may not review the
jurisdiction of the court of origin nor may it apply
the  test  of  public  policy  to  the  rules  relating  to
jurisdiction  set  out  in  Articles  2  to  8.

Article  17

Differences  in  applicable  law

76. This  provision  is  to  be  seen  in  conjunction  with
Article 15(1)(a) (see commentary on the provision).
It  is  designed  to  meet  the  concerns  of  States  with
more  tolerant  internal  provisions  on  divorce  who
fear that the judgments given by their courts might
not be recognised in another State because they are
based on grounds unknown in the legislation of the
State in which recognition is sought. The provision
therefore  limits  indiscriminate  use  of  public  policy.
An example might be legal separation as a basis for
divorce:  if  in  the  State  of  origin  divorce  can  be
granted  after  a  separation  of  two  years,  an
incorrect  interpretation  of  the  public  policy  of  the
State in which recognition is sought, where the law
requires five years of separation, could result in the
refusal  of  recognition.

in 

The  drafting  difficulties  encountered 
the
Working  Party  resulted  in  a  text  which  refers  only
to  the 
in  which
‘law’  of  the  Member  State 
recognition  is  sought  and  the  word  ‘internal’  has
been  deleted:  the  reason  for  the  deletion  was  to
include  both  internal  substantive  provisions  and
private  international  law  provisions.  The  objective
is  simply  to  ensure  that  differences  between
legislation  in  the  Member  States  cannot  result  in
non-recognition  and,  ultimately,  the  very  purpose
of  the  Convention  being  turned  into  a  dead  letter.

the 

time  of 

77. This  is  the  classic  prohibition  on  review  as  to
recognition  or
substance  at 
enforcement.  The  same  provision  appears 
in
Article  29  of  the  1968  Brussels  Convention  and  in
other  Conventions  on  enforcement. 
is  a
necessary rule in Conventions of this kind in order
not  to  subvert  the  meaning  of  the  exequatur
procedure, which does not mean allowing the court
in  the  State  in  which  recognition  is  sought  to  rule
again  on  the  ruling  made  by  the  court  in  the  State
of  origin.

It 

78. The inclusion of this rule in this Convention led to
some  reluctance  by  certain  delegations  in  so  far  as
it  could  mean  making  the  measures  adopted  in
connection with parental responsibility immovable.
The  object  of  the  provision  is  to  prevent  the
measures  from  being  reviewed  in  the  exequatur
procedure, although it may in no case lead to their
being  set  in  stone.  The  basic  principle  is  that  the
Member  State  in  which  recognition  is  sought  may
not  review  the  original  judgment,  which  is  the
logical  consequence  of  a  double  Convention.
However, a change in circumstances may lead to a
need  for  revision  of  the  protective  measures,  as
always  happens  when  we  are  dealing  with
situations  which,  despite  having  a  degree  of
permanence  in  time,  may  need  modification.  In
that  sense,  for  instance,  Article  27  of  the  1996
Hague  Convention  makes 
the
prohibition  on  review  as  to  substance  does  not
prevent  such  review  as 
the
protective  measures  adopted.  In  this  case  too,  the
provision  in  this  Article  must  be  understood  as
being  without  prejudice  to  the  adoption  by  the
competent  authority  of  a  new  ruling  on  parental
responsibility  when  a  change  in  circumstances
occurs  at  a  later  stage.

is  necessary  of 

it  clear 

that 

Article  19

Stay  of  proceedings

79. This  provision  must  be  seen  in  conjunction  with
the  provisions  of  the  Convention  (specifically
Article 14(2)) providing that automatic recognition
and 
in  particular  the  updating  of  civil-status
records do not require any special procedure if the
judgment  of  the  State  of  origin  is  one  against
which  no  further  appeal  lies  under  the  law  of  that
Member  State.

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This Article allows the court of a Member State in
which recognition is sought to stay the proceedings
if  an  ordinary  appeal  against  the  judgment  has
see
been 
Article  27 
in
paragraph  94).

stay  of  enforcement, 

the  commentary 

lodged.  For 

thereon 

(and 

In  the  case  of  judgments  given  in  Ireland  or  the
United  Kingdom,  provision  is  made  for  special
features  of  their  national  legislation.

S e c t i o n   2

H. Enforcement

Article  20

Enforceable  judgments

80. This  provision  governs  the  need  for  exequatur  if  a
judgment  given  in  one  Member  State  is  to  be
enforced in another. All that is required is that the
courts referred to in the subsequent Articles decide,
on  the  application  of  any  interested  party,  on  the
possibility  of  enforcement  in  the  State  in  which
recognition  is  sought,  a  possibility  which  can  only
be  refused  on  the  grounds  listed  in  Articles  15
(grounds  of  non-recognition)  and  16 
(see
Article  23(2)  and  the  commentary  thereon  in
paragraph  89).  While,  for  matrimonial  matters,
recognition procedures are sufficient, in view of the
limited  scope  of  the  Convention  and  the  fact  that
recognition 
includes  amendment  of  civil-status
records,  rules  for  enforcement  are  necessary  in
relation  to  the  exercise  of  parental  responsibility
for  a  child  of  both  spouses.

for 

the  purposes  of 

the
‘Interested  party’, 
application, covers not only the spouses or children
but  must  also  include  the  public  authority  (Public
Prosecutor’s  Office  or  similar  authority)  in  States
where  that  is  possible.

exequatur has been obtained in a State, that State’s
internal  law  will  govern  the  practical  measures  for
enforcement.

The  various  provisions  which  follow  are  intended
to  establish  a  procedure  common  to  all  the
Member  States  for  obtaining  exequatur  which  will
replace 
internal
relevant  provisions 
legislation  or  in  other  Conventions.

the 

in 

Paragraph 2 contains a provision taking account of
the  particular  situation  in  the  United  Kingdom.

Article  21

Jurisdiction  of  local  courts

82. This  provision  is  based  on  Article  32  of  the  1968
Brussels  Convention  but,  unlike  that  Article,  it  is
divided into three paragraphs: the first governs the
type of authority with international jurisdiction for
enforcement  and  the  other  two  refer  to  the  court
that  State.  These
having 
to  recognition,  via
provisions  are  applicable 
Article  14(3),  as  well  as  to  enforcement.  The
is  to  make  matters  easier  for  the
intention 
European  citizen,  who  will  know 
the
beginning  which  court  is  to  be  seised.

jurisdiction  within 

from 

83. Paragraph 

1 

lists 

having
international 
jurisdiction.  It  follows  the  same
system  as  in  Article  32(1)  of  the  1968  Brussels
Convention.

authorities 

the 

in 

relation 

84. The  solution  differs  from  the  one  adopted  in  the
1968  Brussels  Convention 
to
determining the court with local jurisdiction within
the  Member  State.  The  reason  for  this  is  that,  in
relation  to  judgments  both  in  matrimonial  matters
and  on  custody,  there  were  major  differences
between  the  positions  adopted  since  for  some  the
rule  ought  to  be  deleted  whereas  for  others  its
existence  was  vital,  even  though  its  content  was
open  to  discussion.

81. The  purpose  of  this  provision  is  solely  to  make  it
possible  to  enforce  a  judgment  given  in  another
State in relation to parental responsibility since the
procedure  for  enforcement  in  the  strict  sense  is
governed  by  each  State’s  internal  law.  Thus,  once

The  solution  ultimately  adopted  was  to  distinguish
between  two  separate  scenarios,  depending  on
whether  the  application  is  for  enforcement  or  for
recognition.  The  possibilities  offered  by  the  1968
Brussels  Convention  are  thus  extended.

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2(a) 

provides 

Paragraph 

Thus,  what  constitutes  the  general  rule  is  stated
first,  i.e.  the  rule  concerning  an  application  for
exequatur. 
that
jurisdiction will lie with the local court of the place
of  the  habitual  residence  of  the  person  against
whom  enforcement  is  sought  or  of  the  place  of
habitual  residence  of  any  child  to  whom  the
application  relates.  It  was  noted,  however,  that
there  could  be  situations  in  which  neither  the
person  against  whom  enforcement  was  sought  nor
the  child  was  habitually  resident  in  a  Member
State,  and  point  (b)  provides  that  in  such  cases
jurisdiction lies with the local court of the place of
enforcement.

In  the  second  scenario,  where  there  was  action  to
have  a  judgment  given  in  another  Member  State
recognised  or  not  recognised,  paragraph  3  leaves
the matter to the internal legislation of the State in
which  the  application  is  made.

Article  22

Procedure  for  enforcement

the 

under 

85. This  Article  governs  the  various  aspects  of  the
procedure  to  be  followed  for  enforcement  of
judgments.  As 
1968  Brussels
Convention,  the  arrangements  are  based  on  a
procedure at the request of a party which will be a
Community  one,  that  is  to  say  that  the  same
procedure,  which  will  be  fast  and  simple,  will
apply in all Member States, which is an undoubted
advantage.  It  is  not  necessary  to  mention  that  the
procedure  follows  the  same  pattern  as  established
in  the  1968  Brussels  Convention,  with  only  such
modifications  as  are  necessary  owing  to  the
different  matters  covered  by  the  two  Conventions.
Thus,  with  those  exceptions,  the  commentaries  on
many of these provisions refer to the reports on the
various  versions  of  the  1968  Brussels  Convention,
particularly  the  Jenard  report,  as  indicated  at  the
beginning.

This provision deals with the action to be taken by
the applicant. In the first place, it provides that the
detailed rules for submitting the application will be
determined  in  accordance  with  the  internal  law  of
the  State 
sought
in  which  enforcement 
(paragraph  1).  This  means  that  national  legislation
must be consulted for the information to appear in
the  application,  the  number  of  copies  to  be
submitted  to  the  court,  the  authority  with  which
they  are  to  be  deposited,  the  language  in  which
they are to be drawn up and also whether or not a
lawyer  or  any  other  representative  or  agent  needs
to  be  involved.

is 

86. This  Article  also  requires  (paragraph  2)  that  the
applicant give an address for service or else appoint
a  representative  ad 
litem  within  the  area  of
jurisdiction  of  the  court  applied  to.  That  provision
is  of  interest  both  as  to  the  notice  of  the  judgment
to the applicant (Article 24) and the appeal against
the  judgment  granting  exequatur,  which  will  be
contradictory  (Article  26).

87. Finally,  paragraph  3  requires  that  the  documents
referred to in Articles 33 and 34 be attached to the
application.  For  the  consequences  of  failure  to
attach 
(and
commentary  thereon  in  paragraph  107).

see  Article  35 

the  documents, 

Article  23

Decision  of  the  Court

88. Paragraph  1  establishes  the  unilateral,  ex  parte,
nature  of  the  exequatur  procedure,  in  which  the
person  against  whom  enforcement  is  sought  will
not  be  entitled  to  make  any  submissions  on  the
application,  even  in  exceptional  cases,  since  such
submissions  would 
the
procedure  from  a  unilateral  into  a  contradictory
one.  The  rights  of  defence  are  respected  by
allowing  the  person  against  whom  enforcement  is
sought  to  appeal  against  the  decision  granting
enforcement.

systematically  change 

The  court  may  rule  only  on  enforcement  and  may
not  at  this  stage  review  the  custody  measures,  for
instance,  in  line  with  the  1996  Hague  Convention:
Article 39 would prevent that. The court must give
its  decision 
it  was  not
‘without  delay’  but 
considered advisable to set a time limit since such a
limit  does  not  exist  in  judicial  practice  and  no
sanction would be possible if it were not met. Since
the  general  rule  is  the  grant  of  exequatur  on  the
basis  of  the  mutual  confidence  created  by  the
assumption  that  all  courts  within  the  Community
will  have  applied  the  Convention  correctly,  the
procedure  in  this  instance,  as  in  the  1968  Brussels
Convention,  remains  unilateral  and  rapid  given
that  there  is  provision  for  appeal  in  the  later
Articles  of  the  Convention  in  cases  in  which  there
are  problems.

89. This  provision  stipulates  that  the  application  may
be  refused  only  for  one  of  the  reasons  specified  in
Articles  15  and  16  (paragraph  2)  and  that  under
no  circumstances  may  a  foreign  judgment  be
reviewed  as  to  its  substance  (paragraph  3).

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Article  24

Notice  of  the  decision

90. This  Article  provides  that  the  application  will  be
notified  in  accordance  with  the  law  of  the  State  in
which  enforcement  is  sought.  It  illustrates  the
service  or
importance  of  an  address 
appointment  of  a  representative  ad  litem  (see
Article  22)  and  has  implications  for  the  lodging  of
appeals  referred  to  in  the  Articles  that  follow.

for 

Article  25

Appeal  against  the  enforcement  decision

91. Like  the  1968  Brussels  Convention,  this  Article
provides  that  if  enforcement  is  authorised,  the
person  against  whom  enforcement  is  sought  may
appeal  against  the  decision,  while  Articles  28  and
29 deal with appeal arrangements in cases in which
it  was  not  considered  appropriate  to  authorise
enforcement.

If 

Since  normal  operation  of  the  Convention  leads  to
the  grant  of  exequatur,  it  is  logical  that  the  time
allowed for appeal should be brief, just one month
(paragraph  1). 
the  person  against  whom
enforcement  is  sought  is  resident  in  a  Member
State  other  than  that 
in  which  the  decision
authorising  enforcement  was  given,  the  time  for
appealing  is  to  be  two  months  from  the  date  of
service,  either  on  him  or  at  his  residence.  No
extension  of  time  may  be  granted  on  account  of
distance.

Article  26

Courts  of  appeal  and  means  of  contest

92. Paragraph  1  lists  the  courts  of  appeal  against  a
judgment authorising enforcement. In this case, the
procedure 
in  contradictory  matters  will  be
followed,  unlike  the  application  and  original
judgment  for  which  procedure  is  unilateral.  It
should  be  emphasised  that  the  sole  requirement
established  by  the  Convention  is  that  the  appeal
procedure  be  contradictory,  in  contrast  to  the

not, 

under 

equate 

original  judgment  which  is  decided  by  unilateral
procedure.  This  topic  needs  to  be  taken  into
account  particularly  with  regard  to  the  language
differences,  which  must 
any
circumstances, 
‘contradictory’  with
‘contentious’.  In  some  States  the  term  means
contentious  as  well  as  contradictory,  whereas  such
is  not  the  case  in  others.  Hence,  although  the
procedure  must  always  be  contradictory,  whether
or not it is also contentious will depend on internal
law,  in  the  same  way  as  the  law  of  the  forum
determines 
regit
procedure 
processum).

(lex 

fori 

the 

in  this  way 

93. The only means of contesting a judgment given on
appeal  is  in  cassation  or  by  any  other  top-level
appeal  procedure  in  States  which  do  not  have  a
cassation  system.  The  objective  of  limiting  the
avenues  of  appeal 
is  to  avoid
unnecessary  appeals  which  could  be  unfounded
delaying  manoeuvres.  The  ultimate  purpose  is  to
safeguard the objective of the Convention which is
to  facilitate  free  movement  of  judgments.  For  that
reason,  some  delegations  even  considered  it  more
appropriate  to  dispense  with  the  appeal  procedure
provided  for  in  paragraph  2.  However,  it  was
considered  more  advisable  to  retain  the  same
system  as 
in  the  1968  Brussels  Convention,
especially  as  it  is  difficult  to  see  this  avenue  being
used  to  excess  in  the  area  of  family  law.

Article  27

Stay  of  proceedings

94.

to  an  end. 

In  some  cases  it  may  happen  that  the  judgment  in
the  court  of  origin  is  enforceable  even  though  an
appeal  has  been  initiated  or  the  time  limit  for
appeal  has  not  come 
In  such
circumstances,  it  is  desirable  to  avoid  complicating
the  situation  which  would  result  from  the  grant  of
exequatur  of 
judgment.  This  provision
therefore  provides  that  the  court  with  which  the
appeal  is  lodged  may  stay  the  proceedings  if  an
ordinary  appeal  has  been 
lodged  against  the
decision  in  the  Member  State  of  origin  or  if  the
time for such appeal has not yet expired, but is not
obliged to do so. The stay of proceedings can only
take  place  on  the  application  of  the  appellant.

the 

For  stay  of  recognition,  see  Article  19  (and  the
commentary  in  paragraph  79).

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95. Paragraph 2 deals with the special circumstances in

Ireland  and  the  United  Kingdom.

Article  28

Court  of  appeal  against  a  judgment  refusing
enforcement

96.

in  which  enforcement 

In  parallel  with  the  establishment  of  an  appeal
procedure  for  cases 
is
granted,  there  is  also  a  possibility  of  appeal  by  the
applicant  when  enforcement 
is  refused,  and
paragraph  1  lists  the  courts  of  appeal  having
jurisdiction. However, unlike the first case, there is
no  time  limit  for  this  appeal.  As  in  the  1968
Brussels  Convention,  the  reason  is  that,  if  the
applicant’s application has been rejected, he has the
right  to  appeal  when  he  thinks  fit  and  when,  for
example,  he  is  able  to  assemble  the  relevant
documentation.  Once  again,  the  objective  of  the
Convention denotes the difference in the procedure
to  be  followed:  the  normal  consequence  is  for  the
judgment to be enforced and, accordingly, after the
first  decision,  taken  rapidly  by  the  unilateral
procedure, every opportunity must be given for this
aim  to  be  achieved.

97. The  fact  that  the  procedure  is  contradictory  and
the  need  to  protect  the  rights  of  the  party  against
whom  enforcement  was  requested  have  led  to  a
provision  in  paragraph  2  that  the  person  against
whom  enforcement  is  sought  be  summoned  to
appear  and,  if  he  fails  to  appear,  the  provisions  of
Article  10  (examination  as  to  jurisdiction)  will
apply,  whether  he  resides  in  a  Member  State  or  in
a  non-Member  State.

Article  29

Contest  of  the  appeal  decision

98. As 

in  Article  26(2) 

in
commentary 
paragraph  93),  only 
limited  procedures
indicated  are  available  to  contest  the  appeal
decision.

(see 

the 

Article  30

Partial  enforcement

99. Like  Article  42  of  the  1968  Brussels  Convention,
issues.

this  Article  deals  with 

two  separate 

Paragraph  1  deals  with  the  case  where  a  judgment
has  been  given  in  respect  of  several  matters  and
enforcement  cannot  be  authorised  for  all  of  them;
in  that  case  the  court  will  authorise  enforcement
for one or more of them. The second hypothesis, in
paragraph 2, is that the applicant may request only
partial  enforcement  of  a  judgment.

Article  31

Exemption  from  legal  costs

100. As  is  the  pattern  in  other  treaties  on  enforcement,
if  the  applicant  has  benefited  in  the  State  of  origin
from  complete  or  partial  legal  aid  or  exemption
from  costs  or  expenses  he  will  also  be  entitled,  in
the State in which enforcement is sought, to benefit
from  the  most  favourable  legal  aid  or  the  most
extensive  exemption  from  costs  and  expenses
provided  for  by  the  law  of  the  State  addressed.

Article  32

Bond  or  deposit

101. This  Article  repeats  the  now  well  established
principle 
that  no  security,  bond  or  deposit,
however  described,  shall  be  required  of  a  party
who  in  one  Member  State  applies  for  recognition
or  enforcement  of  a  judgment  given  in  another
Member  State  (cautio  judicatum  solvi).

S e c t i o n   3

I. Common  provisions

Article  33

Documents

102. A distinction needs to be made in this case between
the  various  paragraphs  and  the  various  aspects
referred  to  in  each  one.

103. To  begin  with,  paragraph  1  refers 

to 

treaties  require  a  copy  of 

the
documents  which  must  be  produced  in  any  event
by  a  party  seeking  or  contesting  recognition  or
applying  for  enforcement  of  a 
judgment.  All
the
enforcement 
judgment  which  satisfies  the  conditions  necessary
to  establish  its  authenticity  in  accordance  with  the
locus regit actum rule, that is to say the law of the
place  in  which  the  judgment  was  given.  Where
appropriate,  a  document  must  also  be  produced
showing that the applicant is in receipt of legal aid
in  the  State  of  origin.

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because, 
it 

in 
cases 
that  no 

precisely 
is  normal 

104. Paragraph  2  refers  to  the  documents  which  must
be  produced  in  the  case  of  a  judgment  given  in
default  and  it  is  logical  that  it  confines  itself  to
cases  in  which  recognition  or  enforcement  is  being
of
sought 
such
non-recognition 
documents  exist,  as  a  judgment  given  in  default  is
concerned. 
(see
commentary  on  Article  15),  proof  must  be
provided  in  the  required  form  that  the  written
application  or  a  similar  document  was  notified  or,
in  the  case  of  a 
legal
separation  or  marriage  annulment  proceedings,
that the respondent has unequivocally accepted the
(see  comment  on
judgment 
content  of 
Article  15  concerning  cases  of  non-recognition).

In  cases  of  non-recognition 

in  divorce, 

judgment 

the 

Paragraph  2(b)  is  worded  in  such  a  way  as  to  be
consistent  with  Article  15(1)(b)  and  (2)(c).

105. Finally,  paragraph  3  states  the  document  to  be
produced,  in  addition  to  those  provided  for  in
paragraphs  1  and  2,  for  updating  the  civil-status
records.  Given 
records
authenticate  the  data  registered  in  them,  it  is  also
necessary  to  produce  a  document  indicating  that
the  judgment  is  no  longer  subject  to  a  further
appeal  under  the  law  of  the  Member  State  of
origin.

the  civil-status 

that 

Article  34

Other  documents

106.

In  addition  to  the  documents  required  under
Article 33, the party applying for enforcement must
also  produce  documents  which  establish  that,
according  to  the  law  of  the  Member  State  of
origin,  the  judgment  is  enforceable  and  has  been
served.

for  documents 

in
allowed  only 
Article  33(1)(b)  and  (2)  and  does  not  apply  to
those  in  paragraph  3  for  updating  the  civil-status
records.  A  copy  of  the  judgment  in  question  is
therefore  always  necessary.

specified 

regarding 

This  provision  must  be  seen  in  conjunction  with
the  provision 
the
in  Article  21 
consequences if the application for exequatur is not
supported  by  the  documents  required  in  earlier
Articles. The question was discussed at great length
in the work on the 1968 Brussels Convention with
the  result  that  it  was  stipulated  that  if,  despite  the
mechanisms  put  in  place,  the  documents  presented
were  insufficient  and  the  court  did  not  succeed  in
obtaining  the  information  desired,  it  could  declare
the  application  inadmissible.

108.

In  line  with  the  simplification  aimed  at  in  the
Convention,  a  translation  will  be  necessary  only  if
the  court  so  requires.  In  addition,  the  translation
can  be  certified  by  a  person  qualified  to  do  so  in
any  of  the  Member  States  and  not  necessarily  in
the  State  of  origin  or 
in  which
enforcement  is  sought.

the  State 

Article  36

Legalisation  and  similar  formalities

109. No 

for 

the  documents 

legalisation  or  other  similar  formality 
to 

is
required 
in
Articles  33,  34  and  35(2)  or  for  a  document
appointing  a  representative  ad 
the
proceedings  for  obtaining  exequatur.  See  also
Article 21(2). This provision is also in line with the
1968  Brussels  Convention.

referred 

litem 

in 

Article  35

J. Transitional  provisions

TITLE  IV

Absence  of  documents

107.

its  objective,  there 

In  the  spirit  of  the  Convention  and  in  order  to
facilitate  attainment  of 
is
provision to facilitate the production of documents,
allowing  the  court  to  specify  a  time  for  their
production,  accept  equivalent  documents  or,  if  it
considers  that  it  has  sufficient  information  before
it,  dispense  with  their  production  (e.g.  where
documents have been destroyed). This possibility is

Article  37

110. This  provision  corresponds  to  Article  54  of  the
1968  Brussels  Convention.  The  general  rule  is  that
the  Convention  applies  only  to  legal  proceedings
instituted,  to  documents  formally  drawn  up  or
registered  as  authentic 
to
settlements  which  have  been  approved  by  a  court

instruments  and 

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in  the  course  of  proceedings  after  its  entry  into
force  in  the  Member  State  of  origin  and,  where
recognition  or  enforcement  of  a  judgment  or
authentic  instruments  is  sought,  in  the  Member
State  addressed.  It  will  not  therefore  apply  where
proceedings were instituted and the judgment given
before  the  date  of  entry 
into  force  of  the
Convention  (in  conjunction  with  Article  47(3)  and
(4)  and  Article  48(4)).

its  entry 

111. There  is,  however,  provision  for  the  possibility  of
allowing  a  judgment  to  benefit  from  the  system  in
the  Convention,  even  if  the  action  was  brought
before 
if  the  following
into  force, 
requirements  are  met:  (a)  the  Convention  is  in
force  between  the  Member  State  of  origin  and  the
Member  State  addressed;  (b) 
jurisdiction  was
founded  on  rules  which  accorded  with  those
provided for either in Title II of this Convention or
in  a  convention  concluded  between  the  Member
State  of  origin  and  the  Member  State  addressed
which  was  in  force  when  the  proceedings  were
instituted.  The  provision 
rules  of
jurisdiction  applied  ‘accorded  with  those  provided
for  in  Title  II’  means  that  the  court  in  the  State
addressed  will  have  to  examine  the  jurisdiction  of
the  court  of  origin,  which  could  not  have  been
examined  at  the  request  of  the  respondent  in  the
State  of  origin  on  the  basis  of  the  Convention  (see
Article  8,  and  Article  40(2)).

that 

the 

TITLE  V

K. General provisions

Article  38

Relation  with  other  conventions

112. Paragraph  1  contains  the  general  rule  that  this
Convention shall, for the Member States which are
parties  to  it,  supersede  bilateral  or  multilateral
conventions  existing  between  the  Member  States.
Unlike  the  1968  Brussels  Convention  (Article  55),
this  provision  does  not  list  the  Conventions  which
exist.  The  reason  is  that  in  relation  to  other
the  basic
conventions 
Convention  on 
it
(Article  1).  Nevertheless,  a  special  situation  does
arise  in  respect  of  certain  multilateral  conventions
in  Article  39  (see
and  they  are  dealt  with 
that  Article).  Bilateral  and
commentary  on 
multilateral 
the
circumstances  dealt  with  in  Article  40.

the  matters  covered  by 

conventions  apply  only 

this  Convention 

in 

is 

Sweden)  are  party  to  the  Agreement  of  6  February
1931  between  Denmark,  Finland,  Iceland,  Norway
and  Sweden  which  contains  rules  of  international
private  law  concerning  marriage,  adoption  and
custody.  That  Agreement  was  amended  most
recently by an Agreement adopted in Stockholm in
1973. As a result of the political agreement reached
in  December  1997  within  the  European  Union,
Article  38(2)  refers  to  this  particular  situation,
enabling  the  Nordic  Member  States  to  continue
applying  the  Nordic  Agreement  in  their  mutual
relations.  However,  the  conditions  laid  down  in
that  Article  must  be  fulfilled.

Application  by  the  Nordic  Member  States  of  the
1931 Nordic Agreement in their mutual relations is
in  line  with  Article  K.7  of  the  Treaty  on  European
Union, which does not prevent the establishment of
closer  cooperation  between  two  or  more  Member
States  in  so  far  as  such  cooperation  does  not
conflict  with,  or  impede,  that  provided  for  in  the
Convention.

(a) Under Article 39(2)(a) of that Agreement, each
one  of  the  Nordic  Member  States  shall  have
the  right  to  declare  that  the  1931  Nordic
Agreement  will  apply  in  whole  or  in  part  in
their  mutual  relations  in  place  of  the  rules
contained in this Convention. That declaration
shall be made at the time of notification of the
adoption  of  this  Convention  in  accordance
with  the  internal  constitutional  rules  of  the
State  concerned.  Such  a  statement  shall  be
effective  until  it  is  withdrawn  in  whole  or  in
part.

In  accordance  with  the  political  agreement  of
December  1997,  this  exception  to  the  general
application of this Convention shall apply only
when  both  spouses  are  nationals  of  a  Nordic
Member  State  and 
their  usual  place  of
residence is situated within one of those States.
For  that  reason,  the  Nordic  Member  States
which  make  use  of  the  option  to  continue
applying the Nordic Agreement undertake in a
statement annexed to this Convention to cease
applying  Article  7(2)  of  that  Agreement  in  as
much as the rule is based on the nationality of
only  one  spouse  and  also  undertake  to  revise
the  grounds  of  jurisdiction  applicable  under
that  Agreement  in  the  near  future  in  the  light
of  the  principle  of  non-discrimination  on
grounds  of  nationality 
(see  Article  8,
paragraph  47).

113. The Nordic States which are Member States of the
(i.e.  Denmark,  Finland  and

European  Union 

In  addition,  in  the  annexed  declaration,  the
the
Nordic  Member  States  declare 

that 

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grounds for refusal of recognition contained in
the  Nordic  Agreement  are  applied  in  practice
in  a  manner  consistent  with  Title  III  of  this
Convention.

(b) Pursuant  to  paragraph  2(b),  the  principle  of
non-discrimination  on  grounds  of  nationality
will  be  observed  and  monitored  by  the  Court
of  Justice  with  regard  to  the  exception  to  the
general  application  of  this  Convention.

(c) The  provisions  contained  in  paragraph  (c)  are
included  to  guarantee  that  the  rules  governing
jurisdiction  included  in  any  future  agreement
between the Nordic Member States concerning
the matters included in the Convention comply
with  this  Convention.

116.

(d) A 

to 

judgment  handed  down 

in  the  other  Member  States 

in  a  Nordic
Member  State  pursuant 
the  Nordic
Agreement  shall  also  be  recognised  and
enforced 
in
accordance with the rules contained in Title III
of  this  Convention,  provided  that  the  grounds
of 
jurisdiction  used  by  the  Nordic  court
correspond  to  those  laid  down  in  Title  II  of
this  Convention.

114. Paragraph  3  contains  the  general  provision  that
Member  States  may  not  conclude  or  apply
agreements between themselves having an objective
which goes beyond supplementing the provisions of
its  application.
the  Convention  or  facilitating 
the
Member 
transcend 
thus 
Convention; 
for
two  Member  States  could, 
instance, conclude a convention dispensing with all
the  grounds  of  non-recognition
or  some  of 
provided  for  in  Article  15.  The  provision  confirms
the  logic  of  Article  39.

States  may 

Article  39

Relation  with  certain  multilateral  conventions

115. This  provision  contains  the  general  rule  that  this
other
Convention 
international  conventions  to  which  the  Member
States  are  party  in  so  far  as  they  concern  matters
governed  by  both  Conventions.

precedence 

takes 

over 

that 

it  must 

The text adopted means that this Convention takes
precedence  and 
therefore  be
compulsory  to  apply  it  in  place  of  such  other
agreements.  Some  Member  States  wanted  the  use
of this Convention to be optional in relation to one
or  other  of  the  conventions  listed  or  even  to  apply
internal  rules  in  its  place  if  they  were  more
favourable,  but  that  proposal  was  rejected.  Legal

its  scope 

inasmuch  as 

certainty  and  mutual  confidence  require  the  rule
which  was  finally  adopted  whereby  there  is  an
obligation  to  give  precedence  to  the  application  of
this  Convention.  It  should  be  noted  in  particular
that, 
includes  matters
concerning  parental  responsibility  for  a  child  of
both  spouses,  this  Convention  takes  precedence
over the 1996 Hague Convention in cases in which
protection  of  the  child  is  linked  to  the  divorce
process,  also  bearing  in  mind  that  the  application
of  this  Convention  is  confined  to  children  residing
in  the  Member  States.  The  inclusion  of  the  1970
Hague  Convention  on  divorce  means  that  this
Convention  must  take  precedence  since  it  is  also  a
double  Convention.

It  should  be  pointed  out  that  not  all  the  Member
States are party to all the conventions mentioned in
this  Article  and  that  their  inclusion  in  the  list  does
not  mean 
are
recommended  to  accede  to  them.  The  provision  is
simply  a  practical  statement  of  the  relationship
between  this  Convention  and  other  treaty  texts.

the  Member 

States 

that 

is  different 

117. A  clear  distinction  needs  to  be  made  between  the
question  dealt  with  in  this  provision  and  the  one
referred to in Article 4 which relates to a particular
rule  of  jurisdiction  subordinate  to  the  1980  Hague
Convention  on  the  civil  aspects  of  international
child  abduction.  The  situation 
in
relation  to  the  European  Convention  of  20  May
1980  on  Recognition  and  Enforcement  of
Decisions  concerning  Custody  of  Children  and  on
Restoration  of  Custody  of  Children,  although  on
many  occasions  that  Convention  has  been  used  as
an  alternative  to  the  Hague  Convention,  the
conditions  for  its  application  differ  significantly
from  those  of  the  Hague  Convention,  particularly
in  relation  to  the  need  for  a  judgment  to  be  in
place  regarding  custody,  a  requirement  which
makes  a  provision  like  the  one  in  this  Convention
necessary.

Article  40

Extent  of  effects

international  conventions 

118. This Article lays down a rule for the application of
the 
in
Articles  38  and  39  both  in  relation  to  matters  to
which 
apply
(paragraph  1)  and  in  respect  of  judgments  given
before  the  entry  into  force  of  this  Convention

this  Convention 

referred 

does 

not 

to 

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(paragraph  2)  but  does  not  provide  for  any
transitional  rule  on  the 
issue,  without
prejudice  to  what  is  laid  down  in  Article  37,
allowing  recognition  under  this  Convention  for
judgments  given  by  virtue  of  a  ground  of
jurisdiction  recognised  in  the  Convention.

latter 

Article  41

Agreements  between  Member  States

119. This  Article  provides 

that 

to  agreements 

judgments  given
pursuant 
concluded  between
Member  States  party  to  this  Convention  in  order
to  facilitate  or  supplement  the  Convention  may  be
recognised  and  enforced  in  other  Member  States,
within the limits of non-recognition provided for in
Title  III;  this  is  a  logical  solution  since  those
complementary  agreements  cannot  breach 
the
provisions  of  this  Convention  and  the  solution
therefore  does  no  violence  to  the  content  of  the
Convention.

Article  42

Treaties  with  the  Holy  See

(see 

120. When  the  scope  of  the  Convention  was  being
examined 
commentary  on  Article  1,
paragraph  20  part  B)  it  was  pointed  out  that
certain  treaties  with  the  Holy  See  enjoyed  special
arrangements.  There  remained  to  be  resolved  the
difficult problem linked to the fact that in Portugal,
ecclesiastical  courts  have  exclusive  jurisdiction  to
annul a Catholic marriage concluded in accordance
with  the  Concordat,  pursuant  to  Article  XXV  of
to  describe
the  Concordat 
international  treaties  with  the  Holy  See)  between
Portugal  and  the  Holy  See  of  7  May  1940,  as
amended  by  the  additional  Protocol  of  4  April
1975  and  Articles  1625  and  1626  of 
the
Portuguese  Civil  Code.

term  used 

(the 

marriages,  which  was  forbidden  to  both  civil  and
ecclesiastical  courts  by  the  original  version  of  the
Concordat as canonical law does not recognise the
dissolution  of  marriage  by  divorce.

For  Portugal,  the  problem  lay  in  the  exclusive
competence  of  ecclesiastical  courts 
to  annul
canonical marriages. Portugal would in fact violate
the  international  obligations  it  assumed  under  the
Concordat  if  it  agreed  to  ratify  the  Convention
recognising the competence (pursuant to Articles 2,
et  seq.)  of  civil  courts  to  annul  Portuguese
canonical marriages.

The  safeguarding  of  the  Concordat,  in  accordance
with  Article  42(1),  thus  confers  on  Portugal  the
option of not recognising such competence nor any
judgments to annul the marriages referred to which
these  courts  might  hand  down.

Secondly, 
in  accordance  with  paragraph  2,
annulment  judgments  pronounced  pursuant  to  the
rules  of  the  Concordat  or  the  Portuguese  Civil
Code  are  recognised  in  the  Member  States  once
they  have  been  incorporated  into  the  Portuguese
legal system.

On  the  same  topic,  Italy  (see  paragraph  129
concerning  Article  46)  is  making  a  declaration  to
be  annexed  to  the  Convention  in  which  it  reserves
the  right,  in  respect  of  judgments  by  Portuguese
ecclesiastical  courts,  to  adopt  the  procedures  and
carry  out  the  checks  provided  for  in  its  own  legal
system 
judgments  by
ecclesiastical courts, on the basis of the agreements
it  has  concluded  with  the  Holy  See.

respect  of 

similar 

in 

121. The  situation  in  Portugal  is  different  from  that  in
Spain  and  Italy  where  the  ecclesiastical  courts’
jurisdiction  to  declare  annulment  is  not  exclusive
but  concurrent  and  there  is  a  particular  procedure
for recognition in the civil system. For that reason,
a  separate  paragraph  refers  to  those  Concordats
and  stipulates  that  judgments  given  under  them
will enjoy the same system of recognition, although
there  is  no  exclusive  jurisdiction.

It is necessary to point out that the 1975 additional
Protocol  has  no  bearing  on  this  Convention
because  it  is  limited  to  amending  Article  XXIV  of
the  Concordat  to  enable  civil  courts  to  issue  a
the  case  of  canonical
decree  of  divorce 

in 

122.

In  Spain  there  is  an  Agreement  between  the  Holy
See  and  the  Spanish  State  on  legal  affairs  of
3  January  1979.  Article  VI.2  thereof  provides  that
‘the  contracting  parties  may,  under  the  provisions
of  Canon  Law,  seise  the  ecclesiastical  courts  to
apply  for  a  declaration  of  annulment  or  a

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pontifical  declaration  on  an  unconsummated
marriage.  At  the  request  of  either  party,  such
ecclesiastical  decisions  will  be  effective  in  the  civil
order  if  they  are  declared  to  comply  with  the  Law
of  the  State  in  a  judgment  given  by  the  civil  court
having jurisdiction’.

follows: 

Separation  and  divorce  are,  however,  matters  for
the  civil  courts.  The  ecclesiastical  courts’  exclusive
jurisdiction  in  relation  to  annulment  disappeared
after the entry into force of the 1978 Constitution;
the  civil  courts  and  the  ecclesiastical  courts  now
have  alternative  jurisdiction  and  there  is  provision
for  recognition  of  civil  effects.  In  such  cases,  in
addition  to  the  1979  Agreement  mentioned  above,
account needs to be taken of Article 80 of the Civil
Code  and  the  second  additional  Provision  to  Law
30/1981  of  7  July  which  amends  the  rules  on
matrimony  in  the  Civil  Code  and  determines  the
procedure  to  be  followed  in  annulment,  separation
and  divorce  cases.  The  consequences  of  these
provisions  are  as 
firstly,  canonical
decisions  and  judgments  only  produce  civil  effects
if  both  parties  consent  and  neither  contests.
Secondly,  there  having  been  no  contest,  the
ordinary  court  determines  whether  the  canonical
judgment  has  civil  effects  or  not  and,  if  it  does,
proceeds  to  enforce  it  in  accordance  with  the  Civil
Code  provisions  on  annulment  and  dissolution
cases.  Thirdly,  annulment  cases  in  canon  law  and
in  civil  law  do  not  coincide.  For  that  reason,  there
is  discussion  as  to  whether  canonical  judgments
‘which  accord  with  State  law’  can  be  considered
effective  in  the  civil  order.  Fourthly,  Article  80  of
the  Civil  Code  refers  to  Article  954  of  the  Law  on
Civil  Procedure,  regarding  the  conditions  for
enforcing  foreign  judgments.  Such  reference  is
relevant 
the
respondent.  The  essential  issue  is  whether  or  not
one  of  the  parties  has  opposed  the  application  to
give  the  canonical  judgments  and  decisions  on
marriage  annulment  civil  effect.

to  default  of  appearance  by 

123.

In Italy the relevant agreement is the Agreement of
18  February  1984  between  the  Italian  Republic
and  the  Holy  See  amending  the 
‘Concordato
Lateranense’  of  11  February  1929.  Article  8(2)
provides  that  marriage  annulment  judgments  by
the  ecclesiastical  courts  which  are  enforceable  will
produce  effects  in  Italy  by  decision  of  the  ‘Corte
d’appello’ having jurisdiction, provided that: (a) the
ecclesiastical court had jurisdiction over the case in
that  it  was  a  marriage  celebrated  in  accordance
with  the  requirements  laid  down  by  that  Article;

Italian 

legislation 

(b)  the  procedure  before  the  ecclesiastical  courts
afforded  the  parties  the  right  to  appear  and  to  be
defended,  in  accordance  with  the  fundamental
principles  of  the  Italian  legal  system;  (c)  the
conditions  required  by 
for
declaring  foreign  judgments  effective  have  been
met.  Although  Law  218  of  31  May  1995  on  the
reform of the Italian system of private international
law (Article 73) derogated from Articles 796 et seq.
of  the  ‘Codice  di  Procedura  Civile’  (Code  of  Civil
is  understood  that,
Procedure), 
pursuant 
(international
agreements),  those  Articles  remain  in  force  for
recognition 
on
ecclesiastical 
annulment  of  marriages.

in  practice 
to  Article  2 

judgments 

thereof 

of 

it 

124. Paragraph  4,  like  Article  38,  requires  Member
States  party  to  such 
international  treaties  or
concordats  to  send  to  the  depositary  of  this
Convention a copy of the treaties and to notify any
denunciation of or amendments to them. Deletions
from  the  list  of  agreements  will  be  made  in
accordance 
in
the 
Article  49(3).

arrangements 

with 

Article  43

Non-recognition  and  non-enforcement  of
judgments  based  on  Article  8

125. This Article transposes the rule in Article 59 of the
1968  Brussels  Convention  and  needs  to  be  seen  in
conjunction  with  Article  16(1)  (see  commentary  in
paragraph  74).  It  lays  down  a  rule  attenuating  the
effects in Member States of judgments given on the
basis  of  residual  jurisdiction.  Article  43  gives  a
Member  State  the  option  of  not  recognising  a
judgment given in another Member State when it is
founded  on  grounds  of  jurisdiction  other  than
those  specified  in  Articles  2  to  7,  i.e.  solely  on
national  law,  as  set  out  in  Article  8.  But  for  that
the  Member  State  and  the  non-member  country
must  have  concluded  a  convention  applicable
between  them  on  the  recognition  and  enforcement
of 
the  Member  State
undertakes  not  to  recognise  judgments  given  in
another  Member  State  purely  under  Article  8.  The
reason  for  this  is  that  Article  8  does  not  impose  a
common  rule,  hence  Member  States  are  free  to
conclude  such  agreements.

in  which 

judgments 

16.7.98

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C 221/63

Article  44

Member  States  with  two  or  more  legal  systems

the  provision  in  paragraph  1  whereby,  without
prejudice to Articles 38(2) (Nordic Agreement) and
42  (Concordats),  this  Convention  may  not  be
subject  to  any  reservation.

126. This  provision 

takes  direct  account  of 

the
provisions in the 1996 Hague Convention on child
protection for cases in which there are two or more
systems  of  law  or  sets  of  rules  from  the  point  of
view  of  court  procedure.  The  objective  is  to  arrive
the
identifying 
for 
at  complementary  criteria 
territorial  units.  However, 
the  only  grounds
included  are  the  ones  relating  to  matters  included
in  this  Convention.

TITLE  VI

L. Court  of  Justice

Article  45

of 

ensure 

uniform 

interpretation 

127. The  establishment  of  Court  of  Justice  jurisdiction
to 
this
Convention  gave  rise  to  a  great  deal  of  discussion.
For  some  delegations  it  was  an  important  issue,
endorsed  by  the  practice  of  uniform  interpretation
of  the  1968  Brussels  Convention.  Other  States
considered  that  such  jurisdiction  either  should  not
be  conferred  or  should,  in  any  event,  be  confined
to  cases  heard  by  the  highest  judicial  organs  in  a
Member  State,  thus  excluding  appellate  courts  in
the  Member  States.

As a compromise, the solution adopted was simply
to  state  the  jurisdiction  of  the  Court  of  Justice  in
the  Convention  and  leave  the  rules  of  application
to  a  Protocol  to  be  adopted  by  the  Council  at  the
same time as the Convention (see the report on the
Protocol).  Therefore,  only 
courts  and
authorities  of  Member  States  which  ratify  the
Protocol as well as the Convention may refer to the
Court  of  Justice  of  the  European  Communities.

the 

TITLE  VII

M. Final  provisions

Article  46

Declarations  and  reservations

128. The 

integration  which 

intra-
Community  convention  presupposes  brings  with  it

collective 

a 

situations 

129. The  difficulties  encountered  by  some  States  in
connection  with  particular 
to
agreement to include in paragraph 2 acceptance by
the  Member  States  of  the  declarations  made  by
Ireland  (see  comment  on  Article  9,  paragraph  49)
comment  on  Article  42,
and 
paragraph  120)  and 
the  exclusion  of  other
declarations  on  the  same  subject.

Italy 

(see 

led 

Ireland’s  situation  merits  special  attention.  Ireland
has  no  difficulty  in  recognising  divorce  judgments
given  in  another  Member  State  on  the  basis  of
more liberal grounds or rules than those prevailing
in Ireland. However, it wants checks to ensure that
parties  petitioning 
for  divorce  have  actually
habitually  resided  in  a  particular  Member  State  in
order to avoid situations of fraud or circumvention
of  the  aims  of  the  Convention,  which  could  be  in
contravention  of  the  Irish  Constitution.  Taking
account of the provision in Article 16(3) according
to  which  public  policy  cannot  be  used  to  check
jurisdiction,  Ireland  is  particularly  concerned  that
courts  of  the  States  of  origin  should  verify  the
genuine  existence  of  the  connections  provided  for
in Article 2 (jurisdiction in matrimonial matters). It
was not, however possible to accept the initial Irish
proposal to amend the Convention to allow refusal
of  recognition  or  enforcement  of  a  divorce
judgment  given  in  another  Member  State  if  the
jurisdiction to give the judgment was not based on
a  genuine  link  between  one  or  both  spouses  and
the  Member  State  in  question.  That  proposal  was
unacceptable in so far as it called into question one
of  the  fundamental  principles  of  the  Convention,
the  mutual  confidence  between  the  States  pursuant
to  which  the  substance  of  a  judgment  given  in  a
Member State may not be reviewed in the Member
State in which recognition is sought (see Article 18
in  this  connection).  The  delegations  did,  however,
take  into  consideration  the  fact  that  the  Irish
provisions
Constitution 
concerning  divorce  and  that  divorce  had  been
introduced  into  Ireland  very  recently  following  a
referendum.  For 
the  declaration
that  reason 
annexed  to  the  Convention  was  accepted  for  a
renewable  transitional  period  of  five  years.  In  the
long  term,  that  position  may  lead  to  broader
application  of  the  provisions  of  the  Convention.

contains 

specific 

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EN

Official  Journal  of  the  European  Communities

16.7.98

130. Paragraph 

3 

for
withdrawing  such  declarations  and  the  time  at
which  withdrawal  will  take  effect.

established 

system 

the 

Article  47

Adoption  and  entry  into  force

131. Pursuant  to  this  Article,  the  entry  into  force  of  the
Convention  will  take  place  in  accordance  with  the
provisions  established  by  the  Council  of  the
European  Union.

The  Convention  will  enter  into  force  90  days  after
the  notification  of  deposit  of  the  instrument  of
ratification by the last of the 15 States Members of
the European Union at the time the Council adopts
the  Act  establishing  this  Convention  on  28  May
1998  to  complete  that  formality.

concluded 

earlier  between 

132. However,  as  was  done  under  judicial  cooperation
arrangements 
the
Member  States,  paragraph  4  provides  that  any
Member  State,  may,  at  the  time  of  adoption  or  at
any later date, declare that as far as it is concerned
the  Convention  will  apply  to  its  relations  with
Member  States 
same
declaration.  Such  declarations  will  apply  90  days
after  the  date  of  their  deposit.

that  have  made 

the 

Member  States  may  not,  however,  declare  that  the
Court  of  Justice  has  jurisdiction  to  interpret  the
Convention  during 
the  period  of  advance
application  since  that  step  requires  adoption  by  all
15  Member  States  of  the  provisions  of  the
Convention  and  the  entry  into  force  thereof.

Article  48

Accession

133. This  Article  provides  that  the  Convention  is  open
to  accession  by  any  State  that  becomes  a  member
of  the  European  Union  and  carries  out  the
procedures  for  accession.  On  the  other  hand,  a
State  which  is  not  a  member  of  the  European
Union  may  not  accede  to  the  Convention.

If  the  Convention  has  already  entered  into  force
when  the  new  Member  State  accedes,  it  will  enter
into  force  with  respect  to  that  State  90  days  after
the  deposit  of  its  instrument  of  accession.  If  it  has

not already entered into force at the time of expiry
of  the  said  period  of  90  days,  it  will  enter  into
force for that State, as for all the others, under the
conditions set out in Article 47(3). In that case, the
acceding  State  may  make  a  declaration  of  advance
application.

The accession of the new Member State will not be
a  condition  for  the  entry 
into  force  of  the
Convention  in  respect  of  the  other  States  which
were  members  at  the  time  of  adoption  by  the
Council  of  the  Act  establishing  the  Convention.

Article  49

Amendments

134. This Article lays down the procedure for amending
the  Convention.  Amendments  may  be  proposed  by
any  Member  State  or  by  the  Commission  in
accordance  with  Title  VI  of  the  Treaty  on
European  Union.  There  are  different  arrangements
depending  on  the  nature  of  the  amendments
proposed.

135. The first scenario is dealt with in paragraphs 1 and
2  under  which  amendments  will  be  drawn  up  by
the  Council,  which  will  recommend  their  adoption
by  the  Member  States  in  accordance  with  their
respective  constitutional  rules.

136. The  second  system  is  in  paragraph  3  which  allows
a  simplified  procedure  enabling  the  Council  to
adopt  amendments  to  the  naming  of  the  courts  or
means of appeal referred to in Articles 21(1), 26(1)
and  (2),  28(1)  and  29.

Article  50

Depositary  and  publication

137. This  Article  makes  the  Secretary-General  of  the

Council  the  depositary  of  the  Convention.

The  Secretary-General  will  inform  the  Member
States  of  all  notifications 
the
Convention  and  publish  them  in  the  ‘C’  series
the  European
of 
Communities.

the  Official 

Journal  of 

relating 

to