Council Regulation (EU) 2019/1111Show full title

CHAPTER II U.K. JURISDICTION IN MATRIMONIAL MATTERS AND IN MATTERS OF PARENTAL RESPONSIBILITY

SECTION 1 U.K. Divorce, legal separation and marriage annulment

Article 3 U.K. General jurisdiction

In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:

(a)

in whose territory:

(i)

the spouses are habitually resident,

(ii)

the spouses were last habitually resident, insofar as one of them still resides there,

(iii)

the respondent is habitually resident,

(iv)

in the event of a joint application, either of the spouses is habitually resident,

(v)

the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

(vi)

the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is a national of the Member State in question; or

(b)

of the nationality of both spouses.

Article 4 U.K. Counterclaim

The court before which proceedings are pending on the basis of Article 3 shall also have jurisdiction to examine a counterclaim, insofar as that counterclaim falls within the scope of this Regulation.

Article 5 U.K. Conversion of legal separation to divorce

Without prejudice to Article 3, a court of a Member State that has given a decision granting a legal separation shall also have jurisdiction to convert that legal separation to a divorce, if the law of that Member State so provides.

Article 6 U.K. Residual jurisdiction

1. Subject to paragraph 2, where no court of a Member State has jurisdiction pursuant to Article 3, 4 or 5, jurisdiction shall be determined, in each Member State, by the laws of that State.

2. A spouse who is habitually resident in the territory of a Member State; or a national of a Member State, may be sued in another Member State only in accordance with Articles 3, 4 and 5.

3. As against a respondent who is not habitually resident in and is not a national of a Member State, any 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 applicable in that State.

SECTION 2 U.K. Parental responsibility

Article 7 U.K. General jurisdiction

1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

2. Paragraph 1 of this Article shall be subject to Articles 8 to 10.

Article 8 U.K. Continuing jurisdiction in relation to access rights

1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 7, retain jurisdiction, for three months following the move, to modify a decision on access rights given in that Member State before the child moved if the person granted access rights by the decision continues to have his or her habitual residence in the Member State of the child's former habitual residence.

2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child's new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.

Article 9 U.K. Jurisdiction in cases of the wrongful removal or retention of a child

Without prejudice to Article 10, in the case of the wrongful removal or retention of a child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

(a)

each person, institution or other body having rights of custody has acquiesced in the removal or retention; or

(b)

the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

(i)

within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no application for return has been lodged with the competent authorities of the Member State to which the child has been removed or where the child is being retained;

(ii)

an application for return lodged by the holder of rights of custody has been withdrawn and no new application has been lodged within the time limit set in point (i);

(iii)

an application for return lodged by the holder of rights of custody was refused by a court of a Member State on grounds other than point (b) of Article 13(1) or Article 13(2) of the 1980 Hague Convention and that decision is no longer subject to ordinary appeal;

(iv)

no court was seised as referred to in Article 29(3) and (5) in the Member State where the child was habitually resident immediately before the wrongful removal or retention;

(v)

a decision on rights of custody that does not entail the return of the child has been given by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

Article 10 U.K. Choice of court

1. The courts of a Member State shall have jurisdiction in matters of parental responsibility where the following conditions are met:

(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that:

(i)

at least one of the holders of parental responsibility is habitually resident in that Member State;

(ii)

that Member State is the former habitual residence of the child; or

(iii)

the child is a national of that Member State;

(b) the parties, as well as any other holder of parental responsibility have:

(i)

agreed freely upon the jurisdiction, at the latest at the time the court is seised; or

(ii)

expressly accepted the jurisdiction in the course of the proceedings and the court has ensured that all the parties are informed of their right not to accept the jurisdiction; and

(c) the exercise of jurisdiction is in the best interests of the child.

2. A choice of court agreement pursuant to point (b) of paragraph 1 shall be in writing, dated and signed by the parties concerned or included in the court record in accordance with national law and procedure. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing'.

Persons who become parties to the proceedings after the court was seised may express their agreement after the court was seised. In the absence of their opposition, their agreement shall be regarded as implicit.

3. Unless otherwise agreed by the parties, the jurisdiction conferred in paragraph 1 shall cease as soon as:

(a) the decision given in those proceedings is no longer subject to ordinary appeal; or

(b) the proceedings have come to an end for another reason.

4. The jurisdiction conferred in point (b)(ii) of paragraph 1 shall be exclusive.

Article 11 U.K. Jurisdiction based on presence of the child

1. Where the habitual residence of a child cannot be established and jurisdiction cannot be determined on the basis of Article 10, the courts of the Member State where the child is present shall have jurisdiction.

2. The jurisdiction under paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their Member State of habitual residence.

Article 12 U.K. Transfer of jurisdiction to a court of another Member State

1. In exceptional circumstances, a court of a Member State having jurisdiction as to the substance of the matter may, upon application from a party or of its own motion, if it considers that a court of another Member State with which the child has a particular connection would be better placed to assess the best interests of the child in the particular case, stay the proceedings or a specific part thereof and either:

(a) set a time limit for one or more of the parties to inform the court of that other Member State of the pending proceedings and the possibility to transfer jurisdiction and to introduce an application before that court; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 2.

2. The court of the other Member State may, where due to the specific circumstances of the case this is in the best interests of the child, accept jurisdiction within six weeks after:

(a) its seisure in accordance with point (a) of paragraph 1; or

(b) receipt of the request in accordance with point (b) of paragraph 1.

The court second seised or requested to accept jurisdiction shall inform the court first seised without delay. If it accepts, the court first seised shall decline jurisdiction.

3. The court first seised shall continue to exercise its jurisdiction if it has not received the acceptance of jurisdiction by the court of the other Member State within seven weeks after:

(a) the time limit set for the parties to introduce an application before a court of another Member State in accordance with point (a) of paragraph 1 has expired; or

(b) that court has received the request in accordance with point (b) of paragraph 1.

4. For the purposes of paragraph 1, the child shall be considered to have a particular connection with a Member State if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised;

(b) is the former habitual residence of the child;

(c) is the State of the nationality of the child;

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of that property.

5. Where exclusive jurisdiction of the court was established under Article 10 that court cannot transfer the jurisdiction to the court of another Member State.

Article 13 U.K. Request for transfer of jurisdiction by a court of a Member State not having jurisdiction

1. In exceptional circumstances and without prejudice to Article 9, if a court of a Member State which does not have jurisdiction under this Regulation, but with which the child has a particular connection in accordance with Article 12(4), considers that it is better placed to assess the best interests of the child in the particular case, it may request a transfer of jurisdiction from the court of the Member State of the habitual residence of the child.

2. Within six weeks following receipt of the request pursuant to paragraph 1, the requested court may accept to transfer its jurisdiction, if it considers that due to the specific circumstances of the case such a transfer is in the best interests of the child. Where the requested court accepts to transfer jurisdiction, it shall inform the requesting court without delay. In the absence of such acceptance within the timeframe, the requesting court shall not have jurisdiction.

Article 14 U.K. Residual jurisdiction

Where no court of a Member State has jurisdiction pursuant to Articles 7 to 11, jurisdiction shall be determined, in each Member State, by the laws of that Member State.

Article 15 U.K. Provisional, including protective, measures in urgent cases

1. In urgent cases, even if the court of another Member State has jurisdiction as to the substance of the matter, the courts of a Member State shall have jurisdiction to take provisional, including protective, measures which may be available under the law of that Member State in respect of:

(a) a child who is present in that Member State; or

(b) property belonging to a child which is located in that Member State.

2. In so far as the protection of the best interests of the child so requires, the court having taken the measures referred to in paragraph 1 of this Article shall, without delay, inform the court or competent authority of the Member State having jurisdiction pursuant to Article 7 or, where appropriate, any court of a Member State exercising jurisdiction under this Regulation as to the substance of the matter, either directly in accordance with Article 86 or through the Central Authorities designated pursuant to Article 76.

3. The measures taken pursuant to paragraph 1 shall cease to apply as soon as the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.

Where appropriate, that court may inform the court having taken provisional, including protective, measures, either directly in accordance with Article 86 or through the Central Authorities designated pursuant to Article 76, of its decision.

Article 16 U.K. Incidental questions

1. If the outcome of proceedings in a matter not falling within the scope of this Regulation before a court of a Member State depends on the determination of an incidental question relating to parental responsibility, a court in that Member State may determine that question for the purposes of those proceedings even if that Member State does not have jurisdiction under this Regulation.

2. The determination of an incidental question pursuant to paragraph 1 shall produce effects only in the proceedings for which that determination was made.

3. If the validity of a legal act undertaken or to be undertaken on behalf of a child in succession proceedings before a court of a Member State requires permission or approval by a court, a court in that Member State may decide whether to permit or approve such a legal act even if it does not have jurisdiction under this Regulation.

4. Article 15(2) shall apply accordingly.

SECTION 3 U.K. Common provisions

Article 17 U.K. Seising of a court

A court shall be deemed to be seised:

(a)

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he or she was required to take to have service effected on the respondent;

(b)

if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he or she was required to take to have the document lodged with the court; or

(c)

if the proceedings are instituted of the court's own motion, at the time when the decision to institute the proceedings is taken by the court, or, where such a decision is not required, at the time when the case is registered by the court.

Article 18 U.K. Examination as to jurisdiction

Where a court of a Member State is seised of a case over which it has no jurisdiction as to the substance of the matter under this Regulation and over which a court of another Member State has jurisdiction as to the substance of the matter under this Regulation, it shall declare of its own motion that it has no jurisdiction.

Article 19 U.K. Examination as to admissibility

1. Where a respondent habitually resident in a State other than the Member State where the proceedings were instituted does not enter an appearance, the court with jurisdiction shall stay 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 or her to arrange for his or her defence, or that all necessary steps have been taken to this end.

2. Article 19 of Regulation (EC) No 1393/2007 shall apply instead of paragraph 1 of this Article if the document instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to that Regulation.

3. Where Regulation (EC) No 1393/2007 is not applicable, Article 15 of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention.

Article 20 U.K. Lis pendens and dependent actions

1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are instituted before courts of different Member States, 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.

2. Except where the jurisdiction of one of the courts is based solely on Article 15, where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are instituted before courts of different Member States, 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.

3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of the court first seised.

In that case, the party who instituted proceedings before the court second seised may bring those proceedings before the court first seised.

4. Where a court of a Member State on which an acceptance of jurisdiction as referred to in Article 10 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement or acceptance declares that it has no jurisdiction under the agreement or acceptance.

5. Where and to the extent that the court has established exclusive jurisdiction in accordance with an acceptance of jurisdiction as referred to in Article 10, any court of another Member State shall decline jurisdiction in favour of that court.

Article 21 U.K. Right of the child to express his or her views

1. When exercising their jurisdiction under Section 2 of this Chapter, the courts of the Member States shall, in accordance with national law and procedure, provide the child who is capable of forming his or her own views with a genuine and effective opportunity to express his or her views, either directly, or through a representative or an appropriate body.

2. Where the court, in accordance with national law and procedure, gives a child an opportunity to express his or her views in accordance with this Article, the court shall give due weight to the views of the child in accordance with his or her age and maturity.