Divorce Petition Jurisdiction: Never Thum Your Nose at the Rules

The stress and cost of financial remedy proceedings are often overwhelming for couples unfortunate enough to have to endure them. However spare a thought for those for whom jurisdiction is in issue; the parties effectively have to fight over the correct jurisdiction in which to have the fight.

The Court of Appeal recently considered when a court shall be deemed to be seised pursuant to Article 16 of the Council Regulation (EC) No 2201/2003 (“the Regulation”).

Case Law

In Thum v Thum [2018] EWCA Civ 624 the parties were both German, their marriage having broken down in October 2015. The wife’s petition was issued in England on the 26th October 2015 but did not seek to serve the same on the husband until the 19th January 2016 wherein the wife’s solicitors sent the petition to the Foreign Process Section of the High Court for service under Council Regulation (EC) No 1393/2007. However due to insufficient detail as to the address for service, the petition was returned with a certificate of non-service, the husband ultimately being personally served in February 2016 whilst he was in England. The husband commenced divorce proceedings in Germany on the 20th January 2016, those proceedings being served on the wife in March 2016.

Thus the issue to be determined was whether the English court or German court was first seised for the purposes of the Regulation. At first instance the Judge found in favour of the wife, deeming that the English court was seised when the wife’s petition was lodged. The husband appealed on the basis that the wife had failed to take the required steps to effect service on him, being the proviso in Article 16 of the Regulation.

The Court of Appeal was therefore tasked with determining whether the judge had erred in his interpretation and application of Article 16 of the Regulation, specifically with regard to three issues; (i) whether the required steps referred to in the proviso were to be determined autonomously, or by reference to relevant domestic law; (ii) if by domestic law, what steps under English law a petitioner was required to take to have service effected, and (iii) whether the wife had failed to take those steps.

In respect of issue (i) the court determined that it is the domestic law of the relevant Member State which determines what steps are required to be taken, in part because neither the Regulation nor Brussels I Regulation (No 44/2001) contain provisions stipulating the steps required to effect service. The Court of Appeal also referred to the case of Aannemingsbedrijf Aertssen NV v VSB Machineverhuur BV (Case C-523-14) [2016] ILPr 16 wherein a similar approach was adopted. Referencing MH v MH (Case C-173/16) [2017] ILPr 23, 503 the Court of Appeal found that a court is seised once the petition is lodged with the court, the overarching purpose of the proviso being protection from abuse of process. Thus in order for the proviso to apply there must be a failure to comply with a specific step required by the domestic law to have service effected as opposed to a more general failure to effect service. Moreover that failure must be due to the applicant having failed to act diligently by not taking the required step.

As to issue (ii), the Court of Appeal found that “FPR 7.8 stipulates only that a petition must be served on the respondent and any co-respondent. There is no requirement that it must be served within a stipulated period.” Moreover it was not considered possible to imply any specific time limit by analogy with the CPR or imply words such a ‘as soon as possible,’ ‘as soon as practicable’ or ‘reasonably promptly.’ “The rule as to service has never been considered to create any additional obligation to serve ‘immediately’ or to embark on steps to effect service ‘immediately’ nor to require an application by the petitioner if he/she was not intending to do so.”

Thus in respect of issue (iii) the Court of Appeal quite simply found that as there are no specific required steps, only the generally stated obligation to serve, the wife had not failed to take any required step. Thus the fact that the wife gave insufficient details to enable the husband to be served at the address given for service in Germany cannot amount to a failure to take a required step.

The appeal was therefore dismissed.

Guidance

Lord Justice Moylan went on to say, with whom Lord Justice David Richards and Lady Justice King concurred, that the situation is not entirely satisfactory as it would result in an ‘undesirable’ outcome whereby a party may seise a court without the respondent being served ‘reasonably promptly.’ As it was not for the court to decide how this issue should be addressed, Lord Justice Moylan proposed that the Rule Committee should be invited to consider whether any additional obligations as to service should be included in the FPR. We wait in anticipation as to whether that advice shall be heeded