Divorce, Nullity and Judicial Separation Jurisdiction Choice of Law Recognition.
When will English courts accept jurisdiction in competing divorce proceedings?
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Page 1 This article was first published on Lexis®PSL Family on 10 February 2014. Click here for a free 24h trial of Lexis®PSL. When will English courts accept jurisdiction in competing divorce proceedings? 10/02/2014 Family analysis: What factors will the courts consider when competing divorce proceedings have been issued in two EU member state? Frank Arndt, head of international Family law at Stowe Family Law, says the case confirms that absolute priority is given to the proceedings first issued. Original news Jefferson v O'Connor [2014] EWCA Civ 38, [2014] All ER (D) 197 (Jan) The wife issued divorce proceedings in England and the husband issued divorce proceedings in Spain. The judge dismissed the English proceedings on the ground that the wife was estopped from arguing that those proceedings remained extant by the parties' agreement that she had abandoned the English proceedings. The wife appealed. The Court of Appeal, Civil Division, in allowing the appeal, held that Council Regulation (EC) 2001/2003 established a system where the first divorce proceedings in time were intended to take precedence. Accordingly, the judge ought to have held that the Regulation had been applicable and could not be overridden by the agreement. What were the key features of this case? The case concerned competing divorce proceedings in England and Spain. The wife's divorce petition was issued in England in March 2010. The wife signed an agreement in Spain in September 2010, saying that she would withdraw her English petition in favour of Spain. A joint divorce petition was issued in Spain in December 2010. In June 2011 the wife withdrew her consent to the Spanish divorce agreement, including financial arrangements. At a hearing on 2 April 2012 HHJ Booth stayed and subsequently dismissed the wife's divorce petition, on the basis of estoppel, holding her to her agreement in Spain. The wife changed lawyers, instructed Stowe Family Law and appealed out of time against the order staying/dismissing her English divorce petition. Permission to appeal was granted in July 2013 and appeal allowed in January 2014. How does this case further our understanding of the provisions of Council Regulation (EC) 2201/2003 (Brussels II bis)? The essential issue was whether the judge erred in staying/dismissing the wife's petition on estoppel grounds, when the whole scheme of Council Regulation (EC) 2201/2003 ('the regulation') is to accord absolute priority to the court of the member state first seised and to eliminate the exercise of judicial discretion. The wife's English petition was first in time and she had not withdrawn it.
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Family analysis: What factors will the courts consider when competing divorce proceedings have been issued in two EU member states? Frank Arndt, head of international Family law at Stowe Family Law, says the case confirms that absolute priority is given to the proceedings first issued.
Transcript of When will English courts accept jurisdiction in competing divorce proceedings?
Page 1
This article was first published on Lexis®PSL Family on 10 February 2014. Click here for a free 24h trial of Lexis®PSL.
When will English courts accept jurisdiction in competing divorce proceedings?
10/02/2014
Family analysis: What factors will the courts consider when competing divorce proceedings have been issued in two EU member state? Frank Arndt, head of international Family law at Stowe Family Law, says the case confirms that absolute priority is given to the proceedings first issued.
Original news
Jefferson v O'Connor [2014] EWCA Civ 38, [2014] All ER (D) 197 (Jan)
The wife issued divorce proceedings in England and the husband issued divorce proceedings in Spain. The judge dismissed the English proceedings on the ground that the wife was estopped from arguing that those proceedings remained extant by the parties' agreement that she had abandoned the English proceedings. The wife appealed. The Court of Appeal, Civil Division, in allowing the appeal, held that Council Regulation (EC) 2001/2003 established a system where the first divorce proceedings in time were intended to take precedence. Accordingly, the judge ought to have held that the Regulation had been applicable and could not be overridden by the agreement.
What were the key features of this case?
The case concerned competing divorce proceedings in England and Spain. The wife's divorce petition was issued in England in March 2010. The wife signed an agreement in Spain in September 2010, saying that she would withdraw her English petition in favour of Spain. A joint divorce petition was issued in Spain in December 2010. In June 2011 the wife withdrew her consent to the Spanish divorce agreement, including financial arrangements. At a hearing on 2 April 2012 HHJ Booth stayed and subsequently dismissed the wife's divorce petition, on the basis of estoppel, holding her to her agreement in Spain. The wife changed lawyers, instructed Stowe Family Law and appealed out of time against the order staying/dismissing her English divorce petition. Permission to appeal was granted in July 2013 and appeal allowed in January 2014.
How does this case further our understanding of the provisions of Council Regulation (EC) 2201/2003 (Brussels II bis)?
The essential issue was whether the judge erred in staying/dismissing the wife's petition on estoppel grounds, when the whole scheme of Council Regulation (EC) 2201/2003 ('the regulation') is to accord absolute priority to the court of the member state first seised and to eliminate the exercise of judicial discretion. The wife's English petition was first in time and she had not withdrawn it.
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What powers does the court have to stay divorce proceedings when proceedings have been issued in another jurisdiction?
There is a mandatory rule that the court must order a stay of proceedings under art 19 when proceedings have already been issued in another member state. There is a discretionary power to stay under the Domicile and Matrimonial Proceedings Act 1973 when the competing proceedings, whenever instituted, are in a third (ie non-EU) state, on forum convenience grounds or under the Senior Courts Act 1981 if English proceedings are an abuse of process and the competing proceedings are in a third (non-EU) state.
How did Vos LJ deal with the argument around estoppel?
To allow an estoppel to operate would have been to undermine the scheme of the regulation and to introduce the element of discretion, which is expressly precluded. Also, to introduce prorogation (agreement as to divorce jurisdiction) for which there is no provision in the regulation other than for children proceedings.
Do you think a stay being granted on the ground of abuse of process or on temporary case management grounds is a possibility?
We must await determination in another case where the issue arises in respect of a case governed by the regulation. It depends on whether the scheme of the regulation is regarded as excluding all discretionary stays, even in cases of abuse of process.
What should lawyers take from this case?
Lawyers should be aware of the absolute nature of the Council Regulation (EC) 2201/2003 scheme, giving absolute priority to the petition first issued and eliminating the element of judicial discretion to stay in favour of another EC court.
Interviewed by Anne Bruce.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
