In view of the increasing number of couples of different nationalities, residing in countries other than those of their nationality and holding common assets in countries other than the country of their habitual residence, questions concerning the jurisdiction of the courts arise with increasing frequency, both in relation to the granting of the divorce and, following the divorce, the division of the common assets, irrespective of the country in which those assets are located.
Whereas the question of which court has jurisdiction to grant the divorce is, in most cases, relatively straightforward — as a rule, jurisdiction lies with the court of the spouses’ habitual residence — the division of the common assets raises various doubts and difficulties.
Council Regulation (EU) 2016/1103 of 24 June 2016, which applies to matrimonial property regimes, defines a matrimonial property regime as “the set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of the marriage or its dissolution” (see Articles 1 and 3(1)(a)).
It follows from the recitals of this Regulation, more specifically recital 18, that its scope covers “all civil-law aspects of matrimonial property regimes, covering both the everyday management of matrimonial property and its liquidation, in particular as a result of the couple’s separation or the death of one of the spouses. For the purposes of this Regulation, the term ‘matrimonial property regime’ should be interpreted autonomously and should encompass not only rules from which the spouses may not derogate, but also any optional rules which the spouses may agree upon in accordance with the applicable law, as well as any default rules under the applicable law. It includes not only those property regimes specifically and exclusively provided for by certain national legal systems in the case of marriage, but also any property relationships between the spouses and between the spouses and third parties, resulting directly from the matrimonial property regime or its dissolution.”
Accordingly, this Regulation also covers inventory proceedings arising from divorce.
Under Article 5(1) of the same Regulation, the court that decided the divorce has international jurisdiction to decide the inventory proceedings for the division of the former couple’s common estate.
This international jurisdiction is subject to the spouses’ agreement where the court with jurisdiction is one of those exhaustively listed in the four subparagraphs of Article 5(2) of the same Regulation.
This may be the case, for example, where the court with international jurisdiction is the court of the applicant’s habitual residence and the applicant has resided there for the year immediately preceding the submission of the application.
The court’s international jurisdiction is not conditional upon the common estate including assets located in the country of the court with international jurisdiction to hear the inventory proceedings, as a result of the extension of international jurisdiction attributed to that court, under the applicable rules, to hear the divorce proceedings.
For example, a Portuguese court that has international jurisdiction to hear divorce proceedings in the context of a multi-localised legal situation and that has granted the divorce will, in principle, have international jurisdiction to hear the inventory proceedings subsequent to the divorce, even if none of the assets is located in Portugal, unless the situation falls within the scope of Article 5(2) of the Regulation.
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