Vice-President L Bay Larsen,
Presidents of Chambers A Arabadjiev, A Prechal, E Regan, M Safjan (Rapporteur), ML Arastey Sahún,
Judges M Ilešič, J-C Bonichot, S Rodin, I Jarukaitis, A Kumin, M Gavalec, Z Csehi, O Spineanu-Matei
Advocate General AM Collins
The wife, a dual German and Italian national, married the husband, an Italian national, in Berlin, Germany, where their marriage was registered. Subsequently, they undertook extra-judicial divorce proceedings before the Civil Registrar of Parma, Italy, which had jurisdiction to pronounce a legally binding divorce, by recording the agreement drawn up by the spouses after making a full examination of all the circumstances. By such an examination, the registrar had to ensure that the spouses’ consent to the divorce was valid, free and informed, and that the agreement related only to the termination of the civil effects of the marriage, to the exclusion of any transfer of assets, and that the spouses had no children, other than financially independent adult children. In accordance with Italian law, the couple appeared several times before the registrar in order to express and confirm their wish to divorce. At the end of that procedure, the registrar issued to the wife a certificate confirming the divorce, as referred to in article 39 of Council Regulation (EC) No 2201/2003 (“the Brussels IIa Regulation”). According to article 21 of the Regulation, a “judgment”, as defined in article 2(4), given in a member state “shall be recognised in the other member states without any special procedure being required”. The wife then applied for registration of the divorce in the marriage register at the Berlin Registry Office. That application gave rise to a dispute concerning the question whether registration of the divorce required prior recognition by the competent judicial authority of the German “Land”, as provided for by German law for foreign judgments in matrimonial matters. Accordingly, the Berlin Registry Office brought the matter before a local German court, which held that it was only possible to register a divorce obtained through extra-judicial means after recognition by the competent Land judicial authority, namely the Ministry of Justice in Berlin. However, the wife’s appeal against that order was allowed. Seeking the reinstatement of the local court’s order, the authority responsible for monitoring civil status in Berlin (the Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht) appealed to the Federal Court of Justice, Germany, which stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether the rules of recognition of divorce judgments provided by Regulation No 2201/2003 applied in the case of an out-of-court divorce such as that provided for by Italian law.
On the reference—
Held, a divorce judgment granted at the end of extra-judicial proceedings in a member state (with the exception of Denmark) had to be automatically recognised in the other member states, pursuant to article 21 of Regulation No 2201/2003. However, it followed from previous Court of Justice authority that the Regulation covered only a divorce which was pronounced either by a national court or by, or under the supervision of, a public authority, thereby excluding private divorces, such as those before a religious court. It could be inferred from that case law that any public authority called upon to give a “judgment”, within the meaning of article 2(4) of the Regulation, had to retain control over the grant of the divorce, which meant, in the context of divorces by mutual consent, that it examined the conditions of the divorce in the light of national law and the actual existence and validity of the spouses’ consent. Therefore, where a competent extra-judicial authority approved, after an examination as to the substance of the matter, a divorce agreement, it was recognised as a “judgment”, in accordance with article 21 of the Regulation, whereas other divorce agreements which had binding legal effects in the member state of origin were recognised as “authentic instruments or agreements”, in accordance with article 46 of the Regulation. It was precisely that substantive examination which distinguished those judgments from such instruments and agreements. It followed that since the Italian Civil Registrar had jurisdiction to pronounce a legally binding divorce after conducting a full examination of the circumstances, the decree containing a divorce agreement concluded by the spouses and confirmed by them before that registrar in accordance with national legislation, constituted a “judgment”, within the meaning of article 2(4) of the Regulation, for the purpose of the application of article 21(1) (judgment, paras 48, 49, 53–55, 59, 60, 62, 63, 67, operative part).
J Möller, M Hellmann and U Kühne, agents, for the German Government.
N Grünberg, agent, for the Estonian Government.
A Daniel and A-L Desjonquères, agents, for the French Government.
G Natale, avvocato dello Stato, and G Palmieri, agent, for the Italian Government.
B Majczyna and S Żyrek, agents, for the Polish Government.
H Leupold, M Wilderspin and W Wils, agents, for the European Commission.