The Regulation establishes a general jurisdiction found in Article 3 in matters relating to “legal separation” and “marriage annulment”. A court in a member state has jurisdiction to entertain an action for divorce, separation, or nullity where:
- Both spouses are habitually resident there;
- Both spouses were last habitually resident, and one still resides there;
- The defender is habitually resident there;
- The pursuer is habitually resident, and either has resided there for at least a year preceding the application or is domiciled (or a national) there and has resided there for at least six months preceding the application;
- Both spouses are domiciled (or nationals)
In some states a joint application for divorce is possible, and in that event there is jurisdiction if either spouse is habitually resident. There are two subsidiary rules:
- Article 4 confers jurisdiction for a ‘counterclaim’ in respect of matters covered by the Regulation.
- Article 5 gives jurisdiction for conversion of judicial separation into divorce, in states where such a conversion is possible.
There can be no prorogation of jurisdiction in matters of divorce. A state either has jurisdiction, or it does not have jurisdiction. If the court does not have jurisdiction it is bound to declare of its own motion that this is the case (Article 17)