In Romania there are more and more frequently cases where one of the spouses files a claim for divorce after a long separation or where one of the spouses or both of them are now living outside Romania. More frequent are the situations where the spouses are citizens of different EU states.
The first legal issue that arises in such cases is to establish the court that has jurisdiction to issue a divorce decree. In the case of spouses – citizens of two-member states of the European Union, a claim for divorce with a foreign element, the European Regulation no. 2201/2003, on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and on matters of parental responsibility will apply.
It is provided by the provisions of art. 3, paras. 1, letter a) and b) of the Regulation no. 2201/2003 that the courts of the member state where is situated:
the habitual residence of the spouses or the last habitual residence of spouses if one of them still lives there or the usual residence of the respondent or in the case of a joint application, the habitual residence of one of the spouses or the habitual residence of the applicant if he has lived there for at least one year immediately prior to the filing of the application; or the habitual residence of the applicant if he has resided there for at least six months immediately prior to the application and if he is either a national of that Member State or, in the case of the United Kingdom and Ireland, has “domicile” in that place.
From the interpretation of the provisions of paragraph 1 above it is clear that the Regulation establishes an alternative territorial jurisdiction between the listed courts, as evidenced by use of the word ‘’or’’.
We consider that the European legislator sought to give priority to the habitual residence of the parties, instead of their citizenship, applicable under Art. 3, par. 1, letter b) of the Regulation.
The criteria of the nationality of the parties is subsidiary to the residence and is applicable only if there are no grounds for determining the competent court after considering the residence of both or either of the spouses.
In cases where the applicant does not have the criteria to determine the competent court in relation to the residence of the parties, the Regulation provides that the competent court is the one from the Member State of which the two spouses have their nationality and in the case of the United Kingdom and Northern Ireland, the State of their common domicile.
Regarding the court where the spouses are Romanian citizens, the provisions of Art. 915 Civil Procedure Code together with the provisions of Art. 1081 Civil Procedure Code on the preferential jurisdiction of the Romanian courts applies.
The provisions of Article 915 of the Code of Civil Procedure provide as a rule in matters of divorce, that the competent court is the one in whose jurisdiction is the last common dwelling of the spouses.
Through Decision no. 3210/2014, the Supreme Court held that the concept of dwelling should be understood as an element of identification of the individual, and therefore not only the main dwelling (within the identity documents), but also the address where the person lives.
In practice, it was stated that to determine the last common place of residence there is no interest in the strict legal meaning of the concept of domicile, but in the place where the two spouses actually resided. This can be without having fulfilled the formalities required by the relevant legislation concerning the population records. The last joint domicile of the spouses can be proved by any reasonable means.
If the spouses did not have a common dwelling, or if none of the spouses resides in the district of the court where the last common dwelling is situated, the court in whose jurisdiction is the respondent’s home will be competent.
The date when the Claim is to be filed is only considered when determining which court has jurisdiction. Changing domicile after the filing date of the claim of the divorce is irrelevant as far as the jurisdiction of the divorce court is concerned.
In cases where the respondent is not domiciled in Romania and the Romanian courts have international jurisdiction, the court where the applicant is domiciled will be the competent court.
In the cases concerning Romanian citizens if neither the applicant nor the respondent is resident in Romania, the parties may agree to file the divorce application at any court in Romania, or it can be filed with the 5th District Court of Bucharest, in the absence of such an agreement.
Given the fact that the Romanian jurisprudence is not uniform regarding the meaning of the notion of consent of the parties, namely the formality of the parties’ agreement on the choice of court, the Supreme Court has ruled , on these issues through Decision no. 20/2016 where neither the applicant nor the respondent have their home on Romanian territory. It decided that It has established that as an interpretation and application of the provisions of art. 915, paragraph (2) Civil procedure Code that the parties’ agreement on the choice of competent court to rule on the divorce claim must be expressly stated. This means that the agreement must be expressed in writing and expressed verbally before the court if the case is pending. Any agreement must emerge explicitly from the content of any written document or from verbal statements before the court.
The fact that the respondent did not make any opposition to the family application law being filed in a certain court and did not invoke the objection of territorial jurisdiction this is not equivalent to a tacit agreement. It is not enough for the court to find that the respondent’s consent exists. It must be clear and unequivocal.
The question of the choice of jurisdiction must be carefully considered by the parties. Different courts treat the rights obligations and liabilities of the parties differently. If there is the possibility of an action being brought in more than one jurisdiction one jurisdiction maybe more favourable than another. Currently the English courts are more friendly to a wife on a financial settlement and pension rights the question of forum shopping is important. As in all these matters expert legal advice needs to be obtained before embarking on divorce proceedings in any jurisdiction.