Jurisdiction On Matrimonial Matters And Parental Responsibility Matters With Foreign Element Under Eu Law, Polish Law, And Turkish Law

ADMD Law Office, Istanbul
Rima Wojczulis

EU Law, Council Regulation (EC) No 2201/2003

The instrument that governs jurisdiction in matrimonial matters and parental responsibility in the EU Member States is the Council Regulation (EC) No 2201/2003 of November 27, 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. The Regulation's ‘universality’ means that these provisions apply regardless of whether the spouses are nationals of an EU Member State or not.

In accordance with Article 1 of the abovementioned Regulation, the law applies in civil matters relating to divorce, legal separation or marriage annulment, the attribution, exercise, delegation, restriction, or termination of parental responsibility. In particular: rights of custody and rights of access, guardianship, curatorship, the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child, etc.

In accordance with Article 3 of the same Regulation, “In matters relating to divorce, legal separation or marriage annulment, the jurisdiction shall lie with the courts of the Member State:

(a) in whose territory:

• the spouses are habitually resident, or
• the spouses were last habitually resident, insofar as one of them still resides there, or
• the respondent is habitually resident, or
• in the event of a joint application, either of the spouses is habitually resident, or
• the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
• the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses.”

The decisive factor for the choice of jurisdiction is the so-called habitual residence. The term ‘habitual residence’ shall not be interpreted in accordance with the law of one's State. It is the place where one's life interests are concentrated. It does not, therefore, have to be the place of temporary presence at the time of filing a lawsuit, the place of registration, etc.

 The grounds of jurisdiction in matrimonial matters are alternative, not cascaded which means that there is no order of priority between them. The provisions of the Regulation are designed to allow a flexible choice of court for persons who have exercised their freedom of movement.

With three (3) exceptions, jurisdiction in parental responsibility matters is based on the child's habitual residence. The Court that has jurisdiction over parental authority is not necessarily the same as the Court that has jurisdiction over the divorce.

The first exception is mentioned in Article 9 of the Regulation and stipulates that in the case of a lawful movement of a child from one Member State to another, the jurisdiction of the courts of the State of previous habitual residence is maintained for the first three months, even if the child is already habitually resident in another State.

The second exception concerns the wrongful change of the child's habitual residence, the so-called child abduction. In such a case, jurisdiction is established in favor of the court in whose territory the child had his habitual residence immediately before the wrongful removal, as defined and regulated by Article 10 of the Regulation.

A third exception applies when the decision on parental responsibility is linked to the divorce decision. Article 12(1) of the Regulation states that the court that issues the divorce decree has jurisdiction if the following conditions are cumulatively met: ‘at least one of the spouses has parental responsibility for the child, the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child’.

As per Article 19 of the Regulation, in the case spouses lodge their divorce applications in different Member States of the European Union the court petitioned subsequently shall of its own motion suspend the proceedings until the jurisdiction of the court seised first has been established. Where the jurisdiction of a court of a Member State cannot be established pursuant to the Regulation, the jurisdiction shall be determined in each Member State by the law of that State.

Jurisdiction in non-EU matters under Polish law

Jurisdiction of Polish courts in matrimonial matters and in matters relating to matrimonial property relationships is exclusive only if three conditions are fulfilled at the same time, namely, the spouses are Polish citizens, have their place of residence and habitual residence in Poland (Article 1103(1) § 2 of the Code of Civil Procedure).

Although, as stated per §1 of the aforementioned Article, optional jurisdiction of Polish courts in matrimonial matters exists when at least one of the following circumstances occurs:

1. both spouses had their last domicile or last habitual residence in Poland if one of them still has a domicile or habitual residence there, or
2. the plaintiff spouse (foreigner) has their place of residence or habitual residence in Poland for at least one year before the proceedings, or
3. the plaintiff spouse is of Polish nationality and has been domiciled or habitually resident in Poland for at least six months before the proceedings, or
4. both spouses are of Polish nationality.

In cases from relations between parents and children, national jurisdiction is exclusive if all the persons appearing as parties are Polish citizens and have a domicile or place of habitual residence in the Republic of Poland (Article 1103(2)).

Cases from relations between parents and children are also within the national jurisdiction if:

1. the child or the adoptee or adopters have their place of residence or habitual residence in the Republic of Poland, or
2. the plaintiff, if different from the child, has his/her residence or habitual residence in the Republic of Poland for at least one year immediately before the institution of the proceedings, or
3. the plaintiff, if different from the child, is a Polish citizen and has had, for at least six months immediately before the institution of proceedings, his or her place of residence or habitual residence in the Republic of Poland, or
4. the plaintiff and the defendant are Polish citizens.

Jurisdiction of Turkish courts over matters involving a foreign element

Article 14 (1) of the Turkish International Private and Procedural Code No 5718 (‘MOHUK’) states that ‘The grounds and provisions for divorce and separation shall be governed by the common national law of the spouses’. If the spouses are of different nationalities, the law of the place of their common habitual residence, or Turkish law in the absence of such residence, shall govern. The same Article's provisions apply to some of the related consequences of divorce cases, such as spousal maintenance, alimony demands, custody, guardianship, separation, and nullity of marriage. In cases where the competent law is determined on the basis of citizenship, place of residence, or habitual residence, the citizenship, place of residence, or habitual residence at the date of the lawsuit shall be taken as the basis, unless otherwise provided, according to Article 3.

MOHUK specifies which citizenship will be considered if one of the spouses is stateless or holds multiple citizenships (Article 4). When a person is stateless, the citizenship of the domicile place; in the absence of that, the habitual residence; in the absence of that, the state in which he/she is residing on the date of the lawsuit, shall be considered. If the person has multiple citizenship and is also a Turkish citizen, Turkish law applies; if he or she is not a Turkish citizen, the law of the state with which he or she is most closely associated applies.

There are some exceptions where Turkish law will apply in specific situations. If despite the Court's best efforts and research, applicable foreign law provisions cannot be found, Turkish law will be applied (Article 2). According to Article 5, if a provision of relevant foreign law applicable to a specific case is clearly in conflict with Turkish public order, that provision shall not apply; instead, Turkish law shall be implemented.