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How Brussels II ter's habitual residence rules catch international couples off guard — and why filing in the wrong country first can cost you the case
You left Italy eight months ago. You moved back to Dublin, your children are settled in school there, and your solicitor tells you to start divorce proceedings in Ireland. So you wait. You are getting documents together. Meanwhile, your spouse files in Verona.
That filing — made first — may bind you to Italian courts for the entire divorce. Not because Italy is necessarily the right forum. Because it was first.
This is the single most common and costly error we see in cross-border matrimonial cases: a foreign spouse assumes their home court will take the case, delays filing, and loses the jurisdictional race. The consequences go beyond procedure. Substantive outcomes… turn on which court has jurisdiction. Getting jurisdiction wrong can cost tens of thousands of euros and years of litigation.
Jurisdiction in divorce, legal separation, and marriage annulment proceedings between spouses with a connection to an EU member state is governed by Council Regulation (EU) 2019/1111 of 25 June 2019, commonly called Brussels II ter. It replaced Council Regulation (EC) No 2201/2003 — formerly known as Brussels IIa — as of 1 August 2022. The Regulation applies to all EU member states except Denmark.
Article 3 sets out seven grounds of jurisdiction in matrimonial matters. Spouses may raise an application for divorce, legal separation, or marriage annulment in the courts of the member state of their common actual habitual residence — and the Regulation does not allow the parties to choose jurisdiction for actions relating to divorce, legal separation, and marriage annulment.
The full list of grounds under Article 3(1)(a) is worth knowing precisely: courts have jurisdiction if the spouses are habitually resident in that state; if the spouses were last habitually resident there and one of them still resides there; if the respondent is habitually resident there; or if the applicant is habitually resident there and has resided there for at least one year immediately before the application was made. A six-month period suffices if the applicant is also a national of that member state.
These grounds are not ranked. They are alternative. That means multiple EU courts can simultaneously have a valid claim to jurisdiction. Whichever court is seised first wins, under the lis pendens rule in Article 20 of Brussels II ter.
The phrase "habitual residence" sounds simple. In practice, it has generated a stream of references to the Court of Justice of the European Union (CJEU). Two rulings are directly relevant to anyone dealing with Italy right now.
The first is the CJEU judgment of 6 July 2023 in Case C-462/22 (BM v LO). The Court ruled that Article 3(1)(a) of Brussels IIa (now replicated in Brussels II ter) makes jurisdiction conditional on the applicant having established habitual residence in that member state for at least six months immediately prior to the submission of their application. The criteria for jurisdiction listed in Article 3 are objective, alternative, and exclusive. It is not enough to have arrived and merely lived somewhere for six months: the residence must have become habitual — meaning stable and intentional — throughout that period. A foreign national returning to Italy after years abroad cannot immediately issue proceedings there relying on their own residence. They must wait for the six- or twelve-month period to elapse with genuine habitual residence maintained throughout.
The second is the CJEU judgment of 20 March 2025 in Case C-61/24, Lindenbaumer (Court of Justice, Third Chamber, 20 March 2025 — CJEU, Third Chamber, judgment of 20 March 2025 in Case C-61/24, Lindenbaumer). The case concerned whether a diplomatic posting abroad extinguishes habitual residence for divorce jurisdiction purposes. The Court held that the status of a diplomatic agent of one of the spouses is a relevant factor in assessing whether the spouses' residence is habitual in the territory of the receiving state, but that factor is not in itself decisive for the purpose of precluding recognition of habitual residence of the person concerned and of the members of their family in that state. The duration of the spouses' physical presence on the territory of a state is itself an indication of the "stability" of the stay which characterises the concept of "habitual residence".
The principle that flows from both rulings: the concept of "habitual residence" is characterised, in principle, by two factors — first, the intention of the person concerned to establish the habitual centre of their interests in a particular place; and second, a presence which is sufficiently stable in the member state concerned. A spouse cannot be habitually resident in two countries simultaneously for divorce-jurisdiction purposes; the national court must choose one.
The third authority to know is the CJEU judgment of 24 September 2026 in Case C-190/25, Zelabrich (Court of Justice, Third Chamber, judgment of 24 September 2026 in Case C-190/25, Zelabrich). In that case, at the request of the Higher Regional Court of Stuttgart, the Court clarified whether Italian recognition proceedings giving civil effect to ecclesiastical marriage annulments fall within the Regulation's concept of marriage annulment proceedings, and how the Regulation's lis pendens rules should operate in such circumstances. The Advocate General had proposed — and the Court confirmed — that proceedings before an Italian court of appeal to convert a Vatican annulment into a civil effect are not themselves "marriage annulment proceedings" under Brussels IIa Article 19(1), and therefore do not trigger the lis pendens mechanism that would block a parallel German divorce. The practical consequence for clients: a spouse who obtains a Vatican annulment and goes to an Italian court of appeal for its civil recognition is not seising an EU court of a divorce action, and cannot use that proceeding to block a foreign divorce filed first.
Consider a plausible scenario — facts composite for illustration. A British national and an Italian national marry and live in Milan for twelve years. In early 2024, the British spouse relocates to London for work. The children remain in Milan with the Italian spouse. No separation agreement is signed. In November 2024, the British spouse consults a London solicitor, who correctly advises that English courts retain jurisdiction under domestic residual rules post-Brexit (since England is no longer bound by Brussels II ter). The Italian spouse files for legal separation in the Tribunal of Milan in January 2025.
Here is what changes. Italian legal separation (separazione personale) is a distinct proceeding from divorce. Under Italian law, spouses must generally wait six months after a consensual separation or twelve months after a contested separation before filing for divorce. The reform replaced the former three-year waiting period: the current intervals are six months after consensual separation and twelve months after judicial separation. But the separation itself is a Brussels II ter proceeding, and the filing in Milan in January 2025 seises an Italian court first. The London court, if later seised of a separation or divorce action between the same parties on the same basis, must stay its proceedings under the lis pendens rule until Italian jurisdiction is confirmed.
The British spouse's delay of two months cost effective control over which court would decide maintenance, property, and the applicable law.
This is the passage that surprises almost every client we see.
In England and Wales — and in Ireland — jurisdiction in divorce is principally founded on domicile and, to some degree, habitual residence under domestic rules (for England, as modified post-Brexit). A person with an English domicile has a strong claim to bring proceedings in England regardless of where they have been living recently. The English court retains a wide discretion.
Italy does not work this way. For couples with a connection to another EU state, Regulation (EU) 2019/1111 governs both matrimonial jurisdiction and parental responsibility, and habitual residence continues to drive most outcomes in divorce and parental responsibility cases. Domicile — the bedrock of English family jurisdiction — plays no role in the EU framework. Italian courts look at where you actually live, with stability and intent, not where you were born or where your roots lie. An Irish national who has lived in Rome for three years is almost certainly habitually resident in Italy for Brussels II ter purposes, regardless of their Irish domicile. Filing in Dublin may be valid only if the other spouse's habitual residence or the parties' last common habitual residence were in Ireland, or under a nationality ground if both spouses are Irish nationals.
Furthermore, unlike in common-law jurisdictions where a foreign court's proceedings do not automatically affect the home court's willingness to hear a case, the Brussels II ter lis pendens rule is mandatory. While it cannot be ruled out that a spouse may have several residences at the same time, he or she may have, at a given time, only one habitual residence for divorce-jurisdiction purposes. There is no judicial discretion to override lis pendens and hear the case anyway because the other forum is inconvenient.
If you have received an Italian court document — a divorce or separation petition, a summons or a procedural notice — you may have very little time. Italian procedural timelines are strict. Failing to appear or respond can result in a default judgment on jurisdiction and on interim measures including maintenance and custody arrangements. Here is what matters immediately.
First, establish the facts of habitual residence: your own, your spouse's, and your children's. Gather evidence of where each person genuinely lives — utility bills, employment records, school registration, bank statements — for the past twelve to eighteen months. Habitual residence is a factual question, and Italian and CJEU case law requires objective, verifiable evidence of stability and intent, not just a passport address.
Second, identify whether any proceedings have been commenced. If so, in which country and on what date. The date of seising governs lis pendens. Under Brussels II ter, a court is seised when the document instituting proceedings is lodged with the court, provided the applicant has not subsequently failed to take necessary service steps.
Third, check whether children are involved. Parental responsibility — including custody and contact — is governed by a separate jurisdictional rule under Brussels II ter: the child's habitual residence is decisive, not the parents' habitual residence for divorce purposes. The child's habitual residence generally determines the competent court in custody and relocation disputes, so a change of country can shift jurisdiction. If your children are in Italy, Italian courts will almost certainly take custody jurisdiction, even if you divorce elsewhere.
Fourth, consider the applicable law. Jurisdiction and applicable law are separate questions. Regulation (EU) No 1259/2010 — Rome III — determines which country's law governs the divorce itself. The parties may agree on applicable law within limits. If they do not, Rome III applies a cascade: first, the law of the state of common habitual residence at the time of agreement or seising; then the law of the last common habitual residence if one spouse still resides there; then the law of common nationality. Italian divorce law — which requires a statutory waiting period — may apply even if you divorce before a court in another participating EU state.
In our files, the most common mistake is a foreign spouse assuming that because they have returned home and instructed a solicitor or attorney there, jurisdiction is already secured. It is not. Jurisdiction is not secured by retaining a lawyer — it is secured by filing. We regularly see cases where the foreign spouse spent eight to twelve weeks gathering documents at home while the Italian spouse filed first. By the time the foreign filing arrived, the Italian court was already seised, and the only argument available was whether Italian jurisdiction was technically valid — a costly and uncertain battle fought on Italian procedural ground.
If you have received an Italian family court document, or if you know your spouse has consulted a lawyer in Italy, treat the next five working days as the operative window.
Can I divorce in my home country if my spouse lives in Italy?
Possibly, but only if a valid jurisdictional ground under Brussels II ter connects your home country to the marriage — for example, your own habitual residence of one year there, or a shared nationality. If your spouse files in Italy first, the lis pendens rule obliges your home court to stay its proceedings until the Italian court has confirmed or declined jurisdiction. Acting before your spouse does is the only way to secure the forum you want.
My spouse and I both have Italian and British nationality. Does that help?
Common nationality is itself one of the seven grounds of jurisdiction under Article 3(1)(b) of Brussels II ter. That means courts of either country whose nationality you both share can have jurisdiction. However, if both Italy and the United Kingdom are viable forums, the court first seised takes priority for the EU side. England is no longer bound by Brussels II ter post-Brexit, but English courts apply their own rules on lis pendens in relation to EU proceedings — and those rules are complex. Dual nationality is an advantage in choosing a forum, but only if you move first.
What happens to maintenance and property if an Italian court takes jurisdiction over my divorce?
Maintenance is governed by a separate EU instrument — Council Regulation (EC) No 4/2009 — which gives jurisdiction to the court seised of the divorce in certain circumstances. Matrimonial property is governed by Regulation (EU) 2016/1103 if both spouses chose it or if it applies by residence at the time of marriage. Italian substantive law on spousal maintenance (assegno divorzile) and on the matrimonial property regime differs significantly from English, Irish, or US law: Italy has no concept equivalent to the English court's broad discretionary redistribution of assets. The forum matters enormously to the financial outcome.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
