Habitual Residence as a Ground of Jurisdiction in Matrimonial Disputes Connected with the EU: Challenges and Potential

Habitual residence has long been a well-established ground of jurisdiction in family law matters decided both in purely internal cases and in proceedings connected with other EU Member States different from the forum. Nonetheless, its increasing role in defining jurisdiction especially in divorce, legal separation and annulment cases under Regulation (EU) No 2201/2003 on matrimonial matters (so called ‘Brussels IIa’), coupled with the lack of an autonomous definition at the EU level, have given rise to diverging interpretations by Member States’ courts. As a result, the non-uniform application of habitual residence can represent a threat to predictability and unjustified discrimination in cases involving couples having an objective connection with the EU. The following observations aim at providing a little guidance in the determination of the actual meaning of habitual residence, deriving from common principles developed by the EU Court of Justice and evident in the recent case-law of the Member States on Brussels IIa Regulation.