It is the first time ever that the issue of marriage annulment is the subject of a ruling of the European Court of Justice. The facts of the case are however more complex than this limited issue.
On 20 November 2012, Mrs. Mikołajczyk (a daughter) brought an action before the Regional Court of Warsaw, Poland, seeking annulment of the marriage of Mr. Czarnecki to Marie Louise Czarnecka entered in Paris (France) in 1956. The applicant stated that she was the heir to the estate of Zdzisława Czarnecka, Mr. Czarnecki’s first wife, who died in 1999.
According to the applicant, the marriage of Mr. Czarnecki to Mrs. Zdzisława Czarnecka, contracted in 1937 in Poland, had not been dissolved at the time of the marriage between Mr. Czarnecki and Mrs. Marie Louise Czarnecka. Consequently, that second marriage was a bigamous union which should be annulled pursuant to Polish law.
The Polish Court, assuming its jurisdiction under Article 3 of the Brussels II a Regulation, decided on the merits and rejected the applicant’s request finding that the existence of the first marriage had not been proved when the second one was celebrated. Following the appeal of Mrs. Mikołajczyk to the Court of Appeal of Warsaw, this Court decided to refer the matter to the Court of Justice.
In particular, the following issues were referred to the ECJ: (a) whether an action for annulment of marriage, brought by the daughter of one of the spouse for the purpose of inheritance rights, falls within the scope of Regulation No 2201/2003; and (b) whether a person, other than one of the spouses, who brings an action for annulment of marriage may rely on the forum actoris provided for in Article 3(1)(a) fifth and sixth indent.
(a) In regard to the first question, the Court of Justice notes that Article 1(3) provides an exhaustive list of matters excluded from the scope of the Regulation. These include, inter alia, maintenance obligations, trusts and successions. Recital 8 further states that the Regulation should not deal with issues such as the property consequences of the marriage. Therefore, an action for annulment of marriage is not included in the list, set out in Article 1(3), of matters excluded from the scope of that Regulation.
Furthermore, as Advocate General Wathelet stated in point 27 of his Opinion, the fact that an action for annulment relates to a marriage dissolved by the death of one of the spouses does not imply that such action falls outside the scope of Regulation No 2201/2003. Indeed, it cannot be excluded that a person may have an interest in having a marriage annulled, even after the death of one of the spouses.
The ECJ thus held that an action for annulment of marriage, also when brought by a third party following the death of one of the spouses, falls within the scope of Regulation.
(b) A different matter concerns if such third person may rely on the forum actoris provided for in Article 3(1)(a) fifth and sixth indent (the court of the State where the applicant is habitually resident).
While the first four grounds of jurisdiction mentioned by Article 3(1)(a) expressly refer to the habitual residence of the spouses and of the respondent, the fifth and sixth one give jurisdiction to the forum actoris. In order to determine whether that term is limited to the spouses, or whether it also extends to third parties, it is appropriate to determine the precise scope of the term ‘applicant’ within the meaning of those provisions.
The Court starts recalling that Article 3 provides for a number of grounds of jurisdiction, without establishing any hierarchy, since the objective criteria set out in that Article are alternative (see, judgment of 16 July 2009, Hadadi, C‑168/08, paragraph 48). It is therefore apparent that jurisdiction rules in matrimonial matters are not intended to preclude the Courts of several States from exercising jurisdiction. Rather there can be coexistence of several of them, without hierarchy. Such an interpretation is consonant with the objective pursued, «which establishes flexible conflict of law rules to reflect the mobility of individuals and to protect the rights of a spouse who has left the country of common habitual residence, while ensuring there is a genuine link between the party concerned and the Member State exercising jurisdiction » (see also judgment of 29 November 2007, Sundelind Lopez, paragraph 26).
On the other side, as noted by Adv. Gen. Wathelet (para. 44-48), it would be inconceivable that the term ‘applicant’ refers to any third parties in the context of an action for marriage annulment simply because he/she have a locus standi under national law. This construction would have the effect of conferring jurisdiction to review the validity of a marriage, entered into a different State between spouses who are there resident and possibly citizens of such State, on the sole basis that the residence of the non-spouse applicant is in first State and this law allows him/her to raise such an action, without there being any link to the spouses themselves or to the marriage.
It follows that, while an action for annulment of marriage brought by a third party falls within the scope of Regulation, a third party must be bound by the jurisdiction rules set out for the benefit of spouses. Such interpretation does not deprive that third party of access to the courts, since the third party may rely on other grounds of jurisdiction provided for in Article 3. Accordingly, the ECJ finds that the term ‘applicant’ within the meaning of the fifth and sixth indents of Article 3(1)(a) does not extend to persons other than the spouses.
In the light of the foregoing considerations, the Court of Justice finds that the term ‘applicant’ within the meaning of the fifth and sixth indents of Article 3(1)(a) does not extend to persons other than the spouses, and that a person, other than one of the spouses, who brings an action for annulment of marriage may not rely on the grounds of jurisdiction set by Article 3(1)(a) fifth and sixth indent, providing for jurisdiction of the court of habitual residence of the applicant (forum actoris).
Following the construction proposed by the Court, last two grounds of jurisdiction in Article 3(1)(a) should read:
« (a) in whose territory:
« — the applicant spouse is habitually resident if he or she resided there for at least a year immediately before the
application was made, or
« — the applicant spouse is habitually resident if he or she resided there for at least six months immediately before the
application was made and is a national of the Member State in question ….»
Article by Costanza Honorati and Valentina Vadacca