EU Council Regulation 2201/2203, which entered into force on March 1, 2005, concerns jurisdiction in matters of divorce and parental responsibility, as well as the recognition and execution of decisions in matters of financial relations. This arrangement sets out criteria for granting jurisdiction to a state that is a member of the EU.
Among the criteria that confer jurisdiction for a particular country in the EU is a couple's last shared residence, as well as joint citizenship for the couple. The regulation does not establish a hierarchy between the criteria and hence the right of the litigant to choose the criterion that suits him/her for the purpose of choosing the jurisdiction that will apply in his/her case. Thus, for example, a pair of new olim from France who have retained their citizenship can sue each other in France on divorce issues and have them be binding, based on the regulation. The claim that France has no authority would be contrary to the rules of the European international arrangement and would be rejected by the French court, even though the couple resides in Israel.
A French court will have jurisdiction over such a spouse even without the consent of the other spouse, unless the legal jurisdiction was previously seized in Israel. Regulation 2201/2003 does not apply to alimony issues. However, by virtue of this regulation and in combination with another EU regulation, 4/2009, the French court is empowered to discuss alimony issues from the moment the authority before it on the issue of divorce is seized.
Will the Israeli court delay proceedings when such a procedure is taken abroad before the Israeli procedure is taken? In a case heard in 2012, the High Rabbinical Court rejected a woman's claim that she should be granted property and alimony, which she filed in a French court when she sought a civil divorce. It argued that these were spouses who have lived in the country for 25 years and whose common property and life were in the country. Therefore, in its opinion, it must be determined that for convenience, efficiency of hearing -- the possibility of bringing witnesses, considerations of effectiveness, as well as considerations of fairness and reliance of the parties -- the rabbinical court in Israel will have jurisdiction and not the court in France. The French court, for its part, also ruled that the court in France had jurisdiction. It is worth noting that this matter has reached the highest court in France.
The question is how the court will decide when the connection to France will be closer. For example, spouses who have not lived in Israel for a long time and have a place of residence in France, run a business in France, own property there and more.
Another European Council resolution, 1103/2016, which entered into force on January 29, 2019, and is concerned inter alia with the law applicable to matters of property regimes (financial relations), establishes new rules regarding the law that will apply to spouses who married after January 29, 2019. While the 1978 Hague Convention stipulates that in the absence of a marriage agreement, the law applicable to the couple's financial relationship is the law of the couple's cohabitation after their marriage, the new European regulation takes into account the dynamics of global life and allows spouses who have not signed a marriage agreement to apply the law of the state with which they have the closest ties and not necessarily the law of the place of residence after their marriage.
In addition, the new regulation automatically repealed the change in law, in the event of moving to another country. For example: For French spouses who married after September 1, 1992 (the date of adoption of the Hague Convention in France) but before January 29, 2019, and immigrated to Israel and received Israeli citizenship, the law that will apply to their marriage is the law of their first place of residence after marriage. However, if they have not entered into a financial agreement and have not chosen the law that will apply to the financial relations between them, then after their immigration to Israel and the acquisition of Israeli citizenship, Israeli law will automatically apply to the financial relations between them.
The new regulation that applies to spouses which entered into force as of January 29, 2019, does not provide for an automatic change of law beginning in the absence of a prenuptial agreement, but it allows the couple or either of them to demand that the law apply to their relationships according to the circumstances of the case of the couple's relationship. For example, spouses who immigrated to Israel from a country belonging to the European Union and yet maintain close ties with their country of origin or divide their time between the two countries can apply to the property relations between them of the law of their country of origin even in the absence of a financial agreement, provided that they prove that this is the state with which they have the closest affiliation. In that case, the above law will be applied to all the assets of the spouses.
In summary, global life and changing times require us to be careful when it comes to new immigrants with dual citizenship or foreign residents living in Israel. The changes in European regulations entail an opportunity for the spouse who is planning the divorce ahead of time to try to choose the forum that is most suitable for him/her. Therefore, in these cases it is advisable to consult with lawyers who are proficient in both legal systems that may apply to the couple at the time of divorce.
The writer is the proprietor of Liane Kehat Law Offices and Notary.