By Elena Giannattasio, HAGUE Convention Lawyer in New York, Multi-Jurisdictional Divorce, PLLC

Cross-border divorce and custody matters involving European Union member states require careful navigation of both national family law and binding EU regulations governing jurisdiction, recognition, and enforcement.

While substantive family law, divorce grounds, custody standards, parental responsibility, remains within the authority of each individual member state, European Union law plays a decisive procedural role. It determines:

• Which country’s courts may exercise jurisdiction
• Whether a parallel proceeding must be declined
• How judgments circulate across borders
• How child abduction cases are handled within the EU

For internationally mobile families, these rules can materially affect both speed and outcome.

The EU’s Structural Role in Family Law

The EU does not decide:

• Who is awarded custody
• What access schedule is appropriate
• What property division applies
• The substantive grounds for divorce

Instead, EU regulations create a binding jurisdictional and enforcement architecture that applies uniformly across all participating member states.

This architecture is primarily governed by:

• Regulation (EC) No 2201/2003 (“Brussels II bis”) — applicable to proceedings instituted before August 1, 2022
• Regulation (EU) 2019/1111 (“Brussels IIb” or the Recast Regulation) — applicable to proceedings instituted on or after August 1, 2022
• Regulation (EC) No 4/2009 (Maintenance Regulation)
• Regulation (EU) No 1215/2012 (Brussels I Recast), as applicable to civil matters

Understanding which regulation governs depends on the date proceedings were commenced.

Divorce, Legal Separation, and Annulment

Jurisdiction over divorce matters is determined under Brussels II bis or Brussels IIb.

A divorce may be filed in a member state where:

• The spouses are habitually resident
• The spouses were last habitually resident and one still resides there
• The respondent is habitually resident
• In certain cases, where nationality or domicile connects the parties

Once proceedings are initiated in one member state, courts in other member states must decline jurisdiction under the lis pendens rule.

EU regulations do not determine which national substantive law applies to the divorce. Each country applies its own conflict-of-laws rules. Some rely on habitual residence; others on nationality or domicile.

Divorce judgments issued in one member state are automatically recognized in others without special proceedings. Recognition may only be refused on narrow grounds, including public policy or lack of procedural fairness.

Parental Responsibility and Child Custody

Brussels II bis and Brussels IIb govern parental responsibility, including:

• Custody rights
• Access rights
• Guardianship
• Protective measures
• Placement in foster or institutional care

The general rule is jurisdiction in the courts of the child’s habitual residence.

Exceptions may apply where:

• Jurisdiction is retained by a previous court
• The child has a substantial connection to another member state
• Parents agree to transfer jurisdiction
• Urgent protective measures are required

Under Brussels IIb, procedural safeguards were strengthened, including clearer rules regarding child interviews and cross-border cooperation.

All determinations must prioritize the best interests of the child.

Child Abduction Within the European Union

International child abduction cases between EU member states operate under a dual framework:

• The 1980 Hague Convention
• Brussels II bis or Brussels IIb

Brussels II supplements Hague by:

• Imposing strict time limits
• Limiting grounds for refusal
• Allowing the court of habitual residence to override a non-return decision
• Providing enhanced enforcement mechanisms

Under Brussels IIb, the override mechanism is more structured, and procedural cooperation between member states is strengthened.

As a result, intra-EU child abduction litigation may move more quickly and with fewer procedural obstacles than Hague-only cases involving non-EU states.

Maintenance and Financial Support

Maintenance claims are governed by Regulation (EC) No 4/2009 (Maintenance Regulation), which replaced earlier Brussels I provisions for family matters.

Key principles:

• Jurisdiction may lie where the creditor is habitually resident
• Maintenance may be addressed in the divorce forum if properly connected
• Maintenance orders circulate freely across member states

Uncontested claims may be certified as European Enforcement Orders under Regulation 805/2004, allowing direct enforcement without exequatur.

Refusal of enforcement is limited to public policy violations or serious procedural defects.

Recognition and Enforcement Mechanisms

Under Brussels IIb:

• Exequatur procedures have largely been abolished
• Custody and access orders are directly enforceable
• Certified access orders require no additional proceedings
• Cooperation between central authorities is mandatory

These mechanisms significantly reduce enforcement delays across EU borders.

Interaction with National Law

Despite harmonized procedural rules, substantive outcomes still vary because each member state applies its own domestic custody standards.

For example:

• Some countries emphasize shared parental responsibility
• Others apply stronger presumptions favoring primary residence
• Relocation standards differ widely

Accordingly, forum selection may materially influence outcome.

Strategic Considerations in Cross-Border Cases

When a European Union member state is involved, jurisdictional timing, forum selection, and parallel proceedings analysis must take priority. The first-filed rule can determine which country controls the litigation. Intra-EU child abduction cases may proceed under both Hague and Brussels IIb frameworks simultaneously.

Early analysis is essential to determine:

• Where jurisdiction properly lies
• Whether another state must decline jurisdiction
• Whether urgent provisional measures are available
• Whether enforcement will require certification under Brussels IIb

At Multi-Jurisdictional Divorce, PLLC, we advise clients on coordinating EU-regulated divorce, custody, maintenance, and Hague Convention proceedings, working closely with local counsel across member states where appropriate. When Europe forms part of your family’s legal landscape, early, coordinated jurisdictional planning can be decisive.