Article (3) (a) refers in various ways to the habitual residence of one or both of the spouses.

The
nationality of the spouse is irrelevant here; thus, the provision applies even to a divorce where
neither spouse is a citizen of a Member State. In this case, it is worth nothing that not all criteria
were greeted with the same level of acceptance during the negotiations, given that, whilst four of
them were accepted without any difficulty, the last two criteria were only accepted in order to
bring about the possibility of an agreement on the text as a whole at the very last minute.
The Regulation does not itself contain a definition for the habitual residence of a natural person,
so the term is therefore to be interpreted autonomously. The decision of the Regulation authors to
use the term residence as well as a comparison with the Hague Convention suggest that the
habitual residence be determined by objective criteria, giving no regard to subjective intent in
principle.
Even the European Court of Justice has read the article as meaning that the term habitual
residence corresponds to the place which reflects some degree of integration by the child in a
social and family environment. The place is to be determined by considering all factual
circumstances of the individual case, in particular, the duration, regularity, and the conditions and
reason for the stay on the territory of the Member State. The factual center of the marital living
situation with respect to family and work is the controlling factor. That center is to be determined
by the national court by integrating the aforementioned factors into an account of all the
circumstances surrounding the case. The intent to establish habitual residence many only be
considered indirectly if is supported by factual circumstances. The term habitual residence can
take on different meanings according to the respective legal context where it is used.
Establishing a habitual residence requires physical presence in a particular state. A temporary
change of residence does not interrupt ones habitual residence. The residence must objectively
have a certain permanence, although a particular minimum duration is not required. That said,
the intent to establish a habitual residence is not mandatory requirement. Even an involuntary
residence can, based on the objective stabilization of living condition at a place, be converted to
a habitual residence. Multiple habitual residences should not be permitted under article 3 for
reason of legal predictability and certainty jurisdiction.
The first indent applies if the habitual residence of both spouses in one Member state.
The residence need not to be common as understood under family or marital law. Jurisdiction
is founded even where the spouses live separately in different places within the same member
state. There is not required minimum duration of the common residence. Under the principle of
Perpetuation fori, a subsequent discontinuation of the common habitual residence during the
separation of divorce proceedings is irrelevant. If the spouses have their respective habitual
residence in doddering legal units of the state, the jurisdiction rule in indent does not apply. In
fact, this jurisdiction criterion covers the vast majority of cases and is the simplest.

Indent two establishes jurisdiction where the spouses were last habitually resident, so
long as one of the spouses (applicant) still has his or her habitual residence in that state. The last
common habitual residence need not have coincided with an intact marital relationship. Rather, it
is sufficient that the spouses resided separately in the forum state ad one spouse subsequently left
the state. Jurisdiction under indent two ceases when both spouses surrender their habitual
residence in the member state of their last common habitual residence. Nor can this jurisdiction
be revived when the spouse, who had intermittently moved to another member state, returns after
a period of time to previous state of common habitual residence. This is a common case, given
that often when there is a marriage breakdown one of the spouses vacates his/her habitual
residence and moves to another country.
Under indent three, the court where the respondent is habitually resident have jurisdiction
(forum rei). The habitual residence of the respondent is afforded a higher legitimacy as a
connecting factor for international jurisdiction that the habitual residence of the applicant, which
can only establish international jurisdiction under the time limitations of indents five and six.
Should spouses of different nationalities have left the country of their common habitual residence
after their separation, and should the respondent have not yet established a habitual residence in
another member state. The critical point in time here is also the time of service. A change of
habitual residence by the respondent to another member state while proceedings are already
pending is disregarded under the principle of perpetuation fori. On the other hand, it is still
sufficient where the respondent establishes habitual residence only during the proceedings
pending in the forum state, reason being, it would not support the goals of procedural economy
to dismiss an application as inadmissible when the applicant would immediately thereafter be
able to submit an admissible application. This constitutes a general criterion of international
jurisdiction, based on the principle actor sequitur forum rei.
Pursuant to Indent four, jurisdiction over a case is established where the spouses enter a
join application and one of the spouses has his or her habitual residence in the forum state. A
joint application also covers the situation where the spouses file two separate applications for
separation, divorce or marriage annulment. Moreover, it is also sufficient where only one of the
spouses files for divorce (or legal separation or annulment), and the other spouse either
previously or subsequently consents. Once issued, consent cannot be withdrawn. The question of
admissibility form and substantive effectiveness of such consent is not to be appraised either by
the law governing the divorce as lex causae or by the respective lex fori of the court seised but
autonomously under consideration of the goals and purpose of the jurisdictional rules of the
regulation. International jurisdiction of the court under the regulation should not be made
dependent on substantive or procedural requirements of divorce under national law.
Under indent five, the court where the applicant is habitually resident have jurisdiction
when he or she has lived there at least one year immediately before the application was made. As
this provision establishes a forum actoris, it is treated as an exception to the rule of forum rei in
the state of the respondents habitual residence, and as an exception it is to be strictly interpreted.

The sole connecting factor under indent five is the habitual residence of the applicant. Unlike
under indent six, the applicants nationality is irrelevant, the same is true for the nationality or the
habitual residence of the respondent. The residence must have been taken up at least one
uninterrupted year before the application was made. The one year period need not to have
already lapsed at the time the application is made. Rather, it is sufficient if it would expire
sometime during the proceedings. On the other hand, there must be made an exception to this
interpretation of indent five when an additional proceeding becomes pending in another member
state in the interim, as the respondent must have the opportunity to file for divorce before a court
of another member state having international jurisdiction without being blocked by an
application from the other spouse that is not yet admissible.
Indent six merely shortens the minimum duration of residence from one year to six
months when the applicant is either a national of the member state where he or she has
established habitual residence or, in the case of the United Kingdom and Ireland, has his or her
domicile there. This rule seeks to make jurisdiction more readily available to a spouse who
returns to his or her home state as the results of a marital breakdown. As under indent five, an
uninterrupted habitual residence is necessary. This must have begun at least six months
immediately before the application was made. The application must possess the relevant
nationality at the time the application is made, but just as with the habitual residence, it is
sufficient if nationality will be obtained during the proceedings. There is no required minimum
for how long the applicant must have possessed the relevant nationality prior to when the
application is made. Nonetheless a prior nationality is insufficient. For persons who have dual or
multiple nationalities, international jurisdiction is established in a country where the applicant is
a national without giving any consideration to whether that nationality is the most effective
nationality.
Indent six does not apply, in principle, to stateless persons or international refugees, as there is
no nationality to amplify the effect of the habitual residence.

Article 3 (1) (b) regulates the jurisdiction of courts where spouses are nationals, regardless of the
residence of the spouses, when both spouses have a common nationality. This common
nationality suffices to establish jurisdiction even when the spouse have their habitual residence in
another member state or in different member state or in third states, and have no additional
connection to the common state of nationality other than the nationality itself. This is also true
when the spouses share a common nationality of a continental member state and have their
common domicile in England. There is no order of priority between the connecting factors under
article 3(1) (a) and those under article 3(1) (b). Rather, both paragraphs offer equally ranked
alternatives for the spouses. In order to determine whether the spouses have a common
nationality, the time when proceedings become pending is controlling. But where a petition for
nationality is decided upon only during the pendency of matrimonial proceedings, it is sufficient
that common nationality exists at the point in time of the last oral hearing. With persons of
multiple nationalities, is sufficient where the spouses share a nationality that is not effective.
This is true even when the spouses have their domicile and habitual residence in the state of their
common effective nationality. Subparagraph (b) does not apply, in principle, to stateless persons
and refugees. For the United Kingdom and Ireland, the courts shall look to the common domicile
instead of the common nationality.
Under article 3(2), the term domicile is defined according to the law of the United Kingdom
and Ireland. The term as used in common law implies a certain relationship between a person and
a jurisdictional realm, and not, as with the term domicile as used in civil or continental legal
system, to one particular place. The relationship need not be factual, though that often is the case.
In contrast to nationality, domicile can never exist in two different states. It begins at birth with
the default domicile of origin, which can be changed by acquiring a domicile of choice as an
adult.
One matter which is not dealt with this provision is that which occurs when both spouses have
dual nationality. This scenario was brought up recently in the Hadadi case, which was settled by
the judgment of the Court of Justice on 16 July 2009.
Mr Hadadi and Mrs Mesko, both of Hungarian nationality, were married in Hungary in 1979.
They moved to France in 1980, where they still resided at the time of judgment. In 1985 they
acquired French nationality without losing their Hungarian nationality. On 23 february 2002, Mr
hadadi filed for divorce before the court of Pest, which pronounced the divorce on 4 may 2004,
just four days after Hungary jointed the European Union. In the meantime mrs mesko had filled
for a fault-based divorce on 19 february 2003 before the tribunal de grande instance de Meaux in
France, which declared the divorce suit inadmissible by a decree of 8 november 2005. Mr Mesko
lodged an appeal in the Courts view, a divorce decision issued by the Court of Pest could not be
recognized in France given the French law on the matter of dual nationality.

The first issue is a problem of transitional law, given that the Bruxelles II bis regulation was only
applicable from 1 march 2005 onwards. However, in the case described in both spouses have
Hungarian nationality, so the regulation applies.
The second and most relevant issue is that which refers to the use of nationality on the part of
one of the spouses to approach the Hungarian courts, when there is also French nationality,
which coincides with the habitual residence over a long period of time. First, if both spouses
have the nationality of the member state whose court is competent to oversee the proceedings,
and joint nationality of another member state, then preference must be given to the nationality of
the member state of the court seised, which in this case was the French nationality. The
regulation established nothing on the consequences of dual nationality, and that is this event the
courts of each state should apply their domestic rules, but that they should do so within the
frame-work of general community rules on the matter. Second is the issue of whether or not the
court should consider solely the member state nationality with which the spouses maintain the
closest link, or the most effective nationality. The conclusion is as the courts of the nationality
held by the spouses have jurisdiction, and the spouses may choose freely the courts of any of the
member states whose nationality they commonly hold and with which they wish to lodge
proceedings without being required to prove any other points of connection with this state, as the
regulation says nothing to this effect.