On March 20, 2025, the Court of Justice of the European Union ruled on the determination of the habitual residence of spouses under Article 8 of Regulation (EU) No. 1259/2010 on the law applicable to divorce and legal separation (Roma III).

Article 8 of Regulation Roma III governs the law applicable to divorce and legal separation in the absence of a choice by the parties. It provides for the application of the law of the State where the spouses are habitually resident at the time the court is seized (let. a)); or, failing that, where the spouses were last habitually resident (let. b)). In this legal context, P.Q., a German citizen and counselor at the German Embassy in Moscow, filed for divorce from his wife D.L. (also a German citizen who moved to Russia with her husband) at the German district court under German law. The action was based on the assumption that the spouses were habitually residing in Germany. The German judges submitted a preliminary reference to the Court of Justice, seeking clarification on the interpretation of Art. 8 Rome III Regulation in the case at hand.

The EU Court pointed out that the connecting factor of habitual residence also appears in other international private law regulations of the EU, such as Regulation Brussels II a, which has to be interpreted consistently with Regulation Roma III under Recital 10 of the latter. Consequently, the Court established that the concept of habitual residence, as defined within Brussels II a (and b) Regulation, based on residence with a sufficient degree of stability and on the intention to establish the habitual centre of the interests of a person in a particular place – is aligned with the objectives of Rome III Regulation and can be applied within the latter.

Regarding the determination of the habitual residence of a diplomatic agent, the Court of Justice established that the following factors are relevant: (i) the fact that the stay of a diplomatic agent in the territory of the receiving State (in the case at issue, Russia) is not determined by the agent's will, but by that of the sending State (Germany) as well as; (ii) the duration of the stay and the degree of social and; (iii) family integration of the spouses in the receiving State. However, none of these elements is per se decisive for the determination habitual residence.

In the case at hand, the Court of Justice stated, subject to more extensive checks to be made by the referring court, that the spouses had never intended to transfer their habitual residence to Russia, having maintained close connections with Germany.

 

(Comment by Pietro Campana)