On 16 March 2021, the Court of Appeal of Arnhem-Leeuwarden (Gerechtshof Arnhem-Leeuwarden) ruled on appeal in case no. 200.277.891 / 01 (ECLI: NL: GHARL: 2021: 2490), which dealt with the division of the joint property (dwelling house) of two former spouses. The couple married in Nigeria in 2004 and divorced in 2011 (divorce confirmed by a court decision). After the divorce, the joint property of the spouses in the Netherlands remained undivided. The ex-wife (living in the Netherlands) applied to the court for the division of this property.

The Court of Appeal found that the ex-husband has Nigerian nationality, does not reside in the Netherlands and (most likely) lives in Nigeria. On this basis, the Court of Appeal concluded that the case has cross-border aspects, so that the Court of Appeal is obliged to assess ex officio whether the Dutch court has jurisdiction to adjudicate on the present dispute.

The wife claimed the division of a house belonging to a dissolved matrimonial property community. Such claim falls within the material scope (Art. 1) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the field of jurisdiction, applicable law and the recognition and enforcement of judgments in the field of matrimonial property regimes (hereinafter - the Matrimonial Property Law Regulation). Because the claim was filed with the court after January 29, 2019, the Matrimonial Property Regulation also applies temporally (Art. 69 paragraph 1). In addition, noted the court, the Matrimonial Property Regulation has an (unwritten) universal formal field of application with regard to the jurisdiction regime. It, therefore, does not matter for the applicability of the Regulation that the state concerned (Nigeria) is not an EU Member State. Based on the foregoing, the Court of Appeal decided to assess the jurisdiction of the Dutch court based on the Matrimonial Property Regulation.

Since the question of the matrimonial property regime is dealt with separately from the divorce proceedings (and, consequently, Article 5 of the Regulation is not applicable), the court ruled that jurisdiction must be determined under Article 6 of the Regulation. The court noted that Article 6(b) of the Matrimonial Property Regulation lays down the rule, according to which jurisdiction to rule on a matter of the spouses' matrimonial property regime lies with the courts of the Member State in whose territory the spouses were last habitually resident, insofar as one of them still resides there at the time the court is seised. The court noted that although the parties to the dispute did not have a common habitual residence at the time the proceedings were brought (either in the Netherlands or in another EU Member State), the court is aware that the spouses had their last habitual residence in the Netherlands and appellant still reside there, so the point (b) of Article 6 of the Matrimonial Property Regulation must be applied. In such a way, the jurisdiction of the Dutch court was established.

di Arnoldas Rutkauskas

11 August 2021