References: [2016] EWHC 2634 (Fam)
Links: Bailii
Coram: Mostyn J
Ratio: The husband claimed that the W was guilty of abuse of process by issuing the divorce petion, but then not serving it for many months in an attempt to gain a tactical jurisdictional advantage under Brussels II.
Held: H’s application was refused. W sent the papers to the Foreign Process Section for service under the EU Service Regulation (No 1393/2007) on 19 January 2016. Unfortunately, she gave the husband’s address as No 214 Kurfurstendamm Berlin. That is his office address. His home address is No 215. Because the wife did not give the name of his business and there are a number of units in No 214, the papers were returned marked ‘address unknown’ . . This minor error, if indeed it was an error, is not one that can be said to demonstrate that the wife had failed to take steps required of her within the terms of Art 16. And in any event she did perfectly serve the husband on 27 February 2016, four months and a day after the issue of the petition.
Statutes: Brussels II Regulation (No. 1347/2000)
This case cites:
- Cited – Chai v Peng FD (Bailii, [2014] EWHC 1519 (Fam))
The court was severely critical of the practice in divorce proceedings of uissuing a petition for divorce but then not serving it for some time. Holman J referred to a colourful metaphor deployed by leading counsel for the husband: ‘To file [a . . - Cited – R v R (Divorce: Stay Of Proceedings) FD ([1994] 2 FLR 1036)
The wife had filed a petition for divorce on 22 April 1993 but did not reveal and serve it until after the husband had filed a petition in Sweden on 9 June 1993. She now sought an order staying the proceedings in Sweden.
Held: The stay was . . - Cited – Dresser UK v Falcongate Freight Management Ltd; The Duke of Yare CA ([1992] 5 CL 373, [1992] QB 502)
In England the court was first seised of a matter at the point when the proceedings were served, not when they were issued. Article 21 was metaphorically described as a ‘tie-break rule’ which operates on the basis of strict chronological . . - Cited – R v R (Divorce: Stay Of Proceedings) FD ([1994] 2 FLR 1036)
The wife had filed a petition for divorce on 22 April 1993 but did not reveal and serve it until after the husband had filed a petition in Sweden on 9 June 1993. She now sought an order staying the proceedings in Sweden.
Held: The stay was . . - Cited – Tavoulareas v Tsavliris CA ([2004] EWCA Civ 48, Bailii, [2004] 1 Lloyds Rep 445)
The court held that Greek proceedings required service for the purposes of establishing seisin, and therefore priority of jurisdiction. Mance LJ said: ‘Professor Antapassis says that, as a matter of Greek domestic law, the effect of art. 221 is that . . - Cited – UBS Ag, London Branch and Another v Kommunale Wasserwerke Leipzig Gmbh ComC (Bailii, [2010] EWHC 2566 (Comm), [2012] Bus LR D15, [2010] 2 CLC 499)
The defendant asked the court to decline jurisdiction.
Held: Gloster J stated: ‘In the present case the relevant requirement is to be found in CPR 7.5. That provides that a claim form which is to be served within the jurisdiction must be . . - Cited – Weiner v Weiner FD (Bailii, [2010] EWHC 1843 (Fam))
The parties, both Swedish nationals had been habitually resident in England for fifteen years. They had properties in both countries. They disputed the proper forum to resolve their divorce.
Held: Referring to the Regulation, Holman J said: . . - Cited – In Re I (A Child) SC (Bailii, [2009] UKSC 10, SC, SC Summ, UKSC 2009/0075, [2010] 1 All ER 445, [2009] 3 WLR 1299, [2010] 1 FCR 200)
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . . - Cited – Benatti v WPP Holdings Italy Srl and others CA (Bailii, [2007] EWCA Civ 263, Times 16-Apr-07)
The parties had each begun proceedings in different jurisdictions within the European Union. They disputed which court was first seised.
Held: The issue was decided by looking at when, in each case, the document instituting the proceedings was . .
(This list may be incomplete)
Jurisdiction: England and Wales
Last Update: 03-Nov-16
Ref: 570773
