Brussels IIb

Brussels IIb is the EU Regulation that sets the rules, between EU countries, for which court can decide a divorce or a matter about children, and for how far a decision made in one EU country is respected in another. Its official name is Regulation (EU) 2019/1111. It applies to proceedings begun on or after 1 August 2022.

Divorce, separation and annulment

• Which court. Article 3 gives jurisdiction to the courts of the EU country where, for example, both spouses live, or where they last lived together if one still lives there, or where the respondent lives, or where the applicant has lived for a set period. See divorce for foreigners and expats.
• National rules as a back-up. Where no EU court has jurisdiction under articles 3 to 5, each country’s own rules apply (article 6). In Malta, that is article 66N of the Civil Code.
• Cases in two countries. If cases between the same spouses are started in two EU countries, the court that was approached second must pause its case until the first has decided whether it has jurisdiction (article 20).
• Recognition. A divorce decision given in one EU country is recognised in the others without any special procedure (article 30). Recognition can be refused only on the grounds listed in article 38. See recognition of foreign divorces.

Children

• Which court. In matters of parental responsibility, such as care, custody and access, the courts of the EU country where the child is habitually resident when the court is approached have jurisdiction (article 7). There are exceptions, for example where the parents have agreed on a different court.
• If a child is taken or kept abroad wrongfully. The courts of the country where the child lived immediately before keep jurisdiction until the child has a habitual residence in another EU country and either each person with rights of custody has accepted the move, or the child has lived there for at least a year after the person with custody rights knew or should have known where the child was and the child is settled there, and one of a number of further conditions is met. These include that no return application was made within that year, that a return application was withdrawn and not renewed, or that a return application was refused on grounds other than risk of harm or the child’s objection and that decision can no longer be appealed in the ordinary way (article 9).
• The child’s own views. A child who can form their own views must be given a genuine and effective opportunity to express them, directly or through a representative, and the court must give those views due weight according to the child’s age and maturity (article 21).

Return of abducted children

Where a child under sixteen has been wrongfully taken to or kept in an EU country other than the one they lived in, the Regulation’s articles 23 to 29 add to the 1980 Hague Convention (article 22). For example:

• the court must use the quickest procedure available, and a court of first instance must decide within six weeks of being approached, unless exceptional circumstances make this impossible (article 24);
• a court cannot refuse to return a child unless the person asking for the return has had an opportunity to be heard (article 27); and
• where the only reason for refusing is that return would put the child at grave risk of harm, the court cannot refuse if adequate arrangements have been made to protect the child after the return (article 27).

See international child abduction.

Cases outside the EU

Brussels IIb deals with relationships between EU countries. If a country outside the EU is involved, other rules apply, which may include national law and international conventions. Please ask us.