Anne Clotilde Marie-Pierre De La Ville De Bauge v Alessandro China
| Jurisdiction | England & Wales |
| Judge | Mr Cusworth |
| Judgment Date | 07 November 2014 |
| Neutral Citation | [2014] EWHC 3975 (Fam) |
| Docket Number | Case No: FD08D05833 |
| Court | Family Division |
| Date | 07 November 2014 |
[2014] EWHC 3975 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Nicholas Cusworth QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: FD08D05833
FD13F02581
Aidan Vine (instructed by Dawson Cornwell) for the Applicant
Rebecca Bailey Harris (instructed by Gordon Dadds) for the Respondent
Hearing dates: 6 th & 7 th November 2014
This judgment was handed down in private on 7 November 2014. It consists of 20 paragraphs and has been signed and dated by the judge.
The judge hereby gives leave for it to be reported.
Mr Cusworth QC:
In this matter the wife is a French national residing in London and the husband is an Italian national, residing in Italy. The parties married in Italy in October 1995 and have 3 children now aged 16, 14 and 13. This matter has been listed before me over 2 days to deal with certain jurisdictional questions which have arisen. Although there is a direction which provides for both parties, who have been present at the hearing, to give evidence if the court considered it helpful, the matter has in fact been dealt with on submissions from Counsel. I have read and considered a statement from each party.
The circumstances in which the matter comes before me are as follow:
a. The parties' marriage broke down in 2008 and on 14 October 2008 the husband issued a petition for personal separation in the Court of Pordedone, Italy. Whilst this is a separate process from divorce, it is a necessary precursor to divorce in the Italian Court.
b. On 19 December 2008, the wife issued a divorce petition in the Principal Registry, which was then duly stayed by the Court of its own motion.
c. The wife challenged the jurisdictional basis of the husband's petition, which led to an interim ruling accepting jurisdiction from the Italian Court on 22 May 2009. The wife appealed, and her appeal was rejected on 25 November 2010. A final ruling as to legal separation was made in Italy on 9 November 2012. Its' significance will be examined below.
d. On 28 May 2013, the wife went before HHJ Brasse without notice to the husband and issued a second petition in this jurisdiction, notwithstanding:
i. That her first English petition remained on the court file.
ii. That at that point neither she nor her husband had by then taken the step of formally serving the Italian separation order on the other, which would have enabled either to apply (after a further period of 30 days) for divorce in the Italian Court. In the absence of that service, the first date upon which either party could file in that court was in January 2014.
iii. In her statement dated 28 February 2014, the wife explained her position at this time thus (para.12): ' I did not subsequently apply to lift the stay…enabling me to dismiss my original petition because I was fully aware that, in order to do so, I would have needed to serve the Respondent or his solicitors with the application and I had no doubt that the Respondent would have taken the opportunity to issue his divorce petition in Italy…'.
e. On 8 July 2013, the husband served the separation order on the wife, which meant that the order became final on 22 September 2013. On 23 September 2014 he issued a petition for divorce in Italy.
Counsel agreed that 3 questions arose, the answering of which would make clear the way forward and relieve the jurisdictional impasse that had been created. Two of these relate to the impact of Article 19 of Brussels IIR [Council Regulation (EC) No 2201/2003].
Art 19 of Brussels IIR provides, under the heading ' Lis pendens and dependent actions':
1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
2. Where proceeding relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States. The court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.In that case the party who brought the relevant action before the court second seised may bring that action before the court first seised.
The first question is whether Article 19 applies, as a true lis pendens, between Italian separation proceedings and subsequent English divorce proceedings. Mr Vine, for the wife, argued his case thus in his skeleton argument:
'In respect of 'dependent actions' for divorce, legal separation or marriage annulment, it is submitted that the purpose and effect of these provisions is not to confer exclusive jurisdiction on the court 'first seised' with one matrimonial status cause of action over all three possible matrimonial status causes of action:
(i) The conferring of exclusive jurisdiction on the 'first seised' court would exceed the purpose of the ' lis pendens' and 'dependent action' rules, namely avoidance of parallel proceedings and conflict in respect of the decision of the 'first seised' court on the matrimonial status cause of action with which it is seised;
(ii) Art 19 is not expressly worded to confer exclusive jurisdiction provision on the 'first seised' court in respect of all dependent actions, eg wording such as 'the court first seised with an application for divorce, legal separation or marriage annulment shall have jurisdiction over those actions', as this would introduce 'applicable law' through the back door, as the examples in the Explanatory Report, at §57 illustrate (where, in Sweden, the only domestic matrimonial status cause of action is for divorce);'
I do not accept his contention. As Mrs Bailey Harris, for the husband, points out, the Borras report on which he relies for support was framed in relation to the earlier and substantially different provisions of Brussels II Art.11, which comprised two separate clauses dealing with (i) proceedings involving the same cause of action (11.1), and (ii) proceedings not involving the same cause of action (11.2). As the editors of Cheshire, North and Fawcett point out, these 2 clauses were collapsed into a unitary clause in Art 19 of Brussels IIR, and the consequence of that must be that there is a true lis pendens between the separation proceedings in Italy and the Divorce proceedings in England.
I also note in passing that the Italian separation proceedings are an essential precursor to divorce in that jurisdiction, even though comprised in separate proceedings. This is therefore not a situation analogous to that posited in the Borras report where one form of relief available in a particular jurisdiction may not be available in another, and a fresh action for that relief may therefore be contemplated.
The second question, and perhaps the most significant in the circumstances which have arisen in this case, is as to the practical effect on extant proceedings in the second seised state when jurisdiction is confirmed in the first. Art 19(3) demands that the court second seised must decline jurisdiction in favour of the first court, but what does that mean? Mr Vine argues his case thus:
(iii) 'Neither the CJEU, nor domestic, case-law contemplates that Art 19 operates as a discontinuation or a dismissal of the dependent action in the 'second seised' court: in the specific context of matters of parental responsibility under Art 19(2), the 'second seised' court may proceed to exercise jurisdiction after a reasonable period where it has been unable to ascertain whether the jurisdiction of the 'first seised' court has been established (although such jurisdiction may very well have been established)...
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