Brussels II Bis Regulation and the Competence of the Romanian Courts in the Divorce Cases
Brussels II Bis Regulation and the Competence of the Romanian Courts in the Divorce Cases

Summary/Abstract: Jurisdiction competence of the Romanian courts in divorce matters, with an international element was established, before Romania joined the EU, by applying the deposition of article 148-157 of Law No. 105/1992 on private international law relations. The court apprehended with such a request, verifying its competence either officially or fallowing the defendant's invocation of the jurisdiction non-compete exception plead, it was at hand one of two legal solutions, namely: either the rejection of the invoked exception and the statement of competence, a situation which would identify, according to article 20 and 22 of Law no. 105/1992, the applicable law in divorce matters under the aspects of material law, or it would concede the exception and it would dismissed the action, according to article 157 of Law no. 105/1992, as not being under the jurisdiction of the Romanian Court, but under a foreign one. The situation has changed with the ascension of Romania to the EU, when the EU Council regulations took precedence over the national law and they have direct and immediate applicability in the cases that the Romanian courts judge. The new competence of the EU in relation to matrimonial matters determines the Romanian judge to consider two categories of law sources, depending on the connection element (habitual residence of the spouses or at least one of them, joint citizenship) that appears in the case of divorce and it links the trial to the Community area or the extra-communitarian one. The study aims at, among others, analyzing the criteria by which the Romanian courts have their jurisdiction in a divorce case in which the element of foreign origin is related to a EU Member State and the solutions that we have at hand to pass on the jurisdictional noncompete exception and on lis pendens exception, presenting in this respect also cases of jurisprudence. Also, there are references to the relation of the regulation with other international / bilateral conventions in divorce matters.

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