Top EU court backs consideration on citizenship in divorce laws

LUXEMBOURG (CN) — An Austrian court was not obliged to hear the divorce proceedings of a German man who lived in the country for less than a year, even though national law would have allowed someone with Austrian citizenship to proceed, the European Court of Justice ruled Thursday. 

The case was referred by the Oberster Gerichtshof, the Austrian Supreme Court, after the unnamed German man complained when his request for a divorce from his Italian wife was denied because he didn’t mean Austrian residency requirements. He had lived in the country for only seven months after relocating from Ireland, where he’d lived for 10 years with his wife. The Austrian courts said they didn’t have jurisdiction in the case and that he should file for divorce in Ireland. 

Under the Brussels II Regulation, which lays out how jurisdictional issues and enforcement of legal judgments should be resolved between the bloc’s 27 member statements, foreign residents must live in a country for at least a year before filing for a divorce. The residency requirement is dropped to six months for nationals. 

The rules aim to prevent spouses from shopping for the most advantageous system for divorce. As the Luxembourg-based court explains, these regulations offer “a degree of foreseeability for the other spouse” about where they may have to negotiate their divorce. 

But the man who brought the case called the rules, as he was being treated differently than an Austrian citizen would be. That all citizens should be treated equally across the bloc is a foundational concept of the European Union, but some exceptions are allowed. 

The five-judge panel found the rules weren't discrimination, and that the two situations were not comparable. “A national will, in principle, have closer links with his or her country of origin than a person who is not a national,” the Second Chamber wrote, arguing there was a legitimate reason for the difference in regulations. It was not uncommon, according to the court, that a person may return to their country of origin following a breakup, and a citizen would have “institutional and legal ties” as well as “linguistic, social, family or property ties.” 

The EU’s high court has weighed in various divorce-related legal questions over the years. It has ruled that non-EU citizens aren’t entitled to residency if their spouse moves outside of the European Union or if they are forced to leave a marriage due to domestic violence. In 2017 the court found that it was up to individual member states to decide to recognize “private divorces,” such as when a couple separates under religious rules. 

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