The Court of Justice of the European Union has ruled that a divorce decree drawn up by the civil registrar of the Member State of origin in accordance with national legislation constitutes a ‘judgment’ within the meaning of the Brussels IIa Regulation and must therefore be automatically recognised by the civil registries of the host country, in a judgment delivered on Tuesday 15 November (case C-646/20).
In 2018, the German civil status services refused to recognise the divorce certificate issued by the Italian civil registrar, in accordance with Italian law, between two spouses (Italian wife and Italian-German husband) who married in 2013 in Germany.
According to the Court, the concept of ‘judgment’ in the Brussels IIa Regulation covers any divorce decision made in the course of judicial or extrajudicial proceedings, insofar as the law of the Member States confers jurisdiction on extrajudicial authorities. Thus, it adds, any decision on a divorce given by such competent extrajudicial authorities in one Member State must be automatically recognised by the authorities of another Member State.
The European Court of Justice recalls its case-law according to which the Brussels IIa Regulation only covers divorces pronounced by a national court or public authority. It specifies that, in the case of divorces by mutual consent, any public authority must examine the conditions of the divorce under national law and the actual existence and validity of the consent of the separating spouses.
This requirement for an examination is the criterion for distinguishing the concept of ‘judgement’ from those of ‘authentic instrument’ and ‘agreement between the parties’ which also appear in the Brussels IIa Regulation. These provisions have been clarified in the Brussels IIb Regulation (2019/1111) which replaced the Brussels IIa Regulation from 1 August 2022.
See the Court’s judgment: https://aeur.eu/f/42v (Original version in French by Mathieu Bion)