According to the Family Code, disposal of real estates, movables through a formal deal, and with deposits as well as with securities belonging to the child is allowed with the permission of the regional court according to the child’s current address if the disposal does not contradict the child’s interest.
The procedure for granting permission for disposal of a property owned by a child (infant or minor) starts by an application submitted either by the minor[1], with the approval of his/her parent/custodian, or by the legal representative of the infant[2] – his/her parent or guardian. If the child is above 14 years old, but under 18, the application should be signed by both the child and his/her parent/custodian.
The question about the international jurisdiction of the court to grant permission for disposal with a property, belonging to the child arises when this child lives abroad.
Example: Parents (Bulgarian citizens, who live in Germany) wish to transfer the ownership of a real estate owned by them, located in Bulgaria, to their two kids (also Bulgarian citizens, who live with their parents in Germany), while preserving their right to use that property.
As far as the establishment of the right of use (from the children in favor of their parents) is a disposal legal act, permission from the court is required for its performance.
In our example, we should apply the Regulations, which form part of the secondary law of the European Union (EU), insofar as both countries concerned – those of the habitual residence [3] of the children (Germany) and those of the location of the property (Bulgaria), are member states of the EU.
The issues related to the administration, conservation or disposal of the child’s property are matters of the parental responsibility, thus the assessment, which court is competent to grant the permission for disposal, should be made according to Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (“Regulation (EC) No 2201/2003”)[4].
For the purposes of Regulation (EC) No 2201/2003, the term “parental responsibility” shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect.
In p. 9 from the Preamble of Regulation (EC) No 2201/2003 is envisaged that:
“As regards the property of the child, this Regulation should apply only to measures for the protection of the child, i.e. (i) the designation and functions of a person or body having charge of the child’s property, representing or assisting the child, and (ii) the administration, conservation or disposal of the child’s property. In this context, this Regulation should, for instance, apply in cases where the parents are in dispute as regards the administration of the child’s property. Measures relating to the child’s property which do not concern the protection of the child should continue to be governed by Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.”
According to Regulation (EC) No 2201/2003, the general jurisdiction in matters of parental responsibility is based on the habitual residence of the child, insofar as it is assumed that the child is in the closest proximity to the court of the country where he/she has his/her habitual residence. Following this rule, in our example, the German court is competent to grant permission for disposal with the property of the children.
Nevertheless, Regulation (EC) No 2201/2003 envisaged the prorogation of jurisdiction, according to which there may be a choice of court in the event of a case for parental responsibility. One of the hypotheses of the prorogation provides that the seised court can hear the case, even if the child has his/her habitual residence in another country if there is a substantial connection between the child and the Member State, in which the seised court is located. This is the case especially when the child is a citizen of that Member State.
According to Regulation (EC) No 2201/2003, the child shall be considered to have a particular connection to a Member State, if that Member State “is the place of the child’s nationality” or if this state “is the place where the property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.”
Consequently, in our example, based on this “particular connection to a Member State”, the Bulgarian court will be competent to grant the permission for disposal with property located in Bulgaria, belonging to the children, who live in Germany.
This conclusion is supported also by p. 16 from the Preamble of Regulation (EC) No 2201/2003, according to which:
“This Regulation should not prevent the courts of a Member State from taking provisional, including protective measures, in urgent cases, concerning persons or property situated in that State.”
[1] The child is above 14 years old, but under 18
[2] The child is under 14 years old
[3] The habitual residence is a place which reflects some degree of integration by the child in a social and family environment. (Judgement of the European Court of Justice, Case C‑523/07). This should be a permanent and habitual center of interest of the child.
[4] Regulation (EC) No 2201/2003 shall apply from 1 March 2005 (in Bulgaria after 1 January 2007) and has effect in all Member States except for Denmark
