Catja Marion Thum (Petitioner) v Oliver Thum
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 21 October 2016 |
| Neutral Citation | [2016] EWHC 2634 (Fam) |
| Date | 21 October 2016 |
| Court | Family Division |
| Docket Number | Case No: ZC15D04127 |
[2016] EWHC 2634 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: ZC15D04127
Martin Pointer QC and Rebecca Carew-Pole (instructed by Schillings) for the Petitioner
Christopher Pocock QC (instructed by Farrer & Co) for the Respondent
Hearing dates: 20 October 2016
In this judgment I shall refer to the petitioner as the wife and to the respondent as the husband.
In Chai v Peng [2014] EWHC 1519 (Fam) at para 37 Holman J referred to a colourful metaphor deployed by leading counsel for the husband in that case:
"To file [a divorce petition] prematurely is the equivalent of laying one's towel at dawn upon the sun lounger of the English court and returning at high noon to bask in the warmth of the law of England and Wales on divorce and financial remedies."
In that case the petition had been issued on 14 February 2013 but it was not until May 2014 that she actually sought to use it (as Holman J put it).
The practice of issuing a petition but not serving it and keeping it secret was condemned in strong terms by Ewbank J in R v R (Divorce: Stay Of Proceedings) [1994] 2 FLR 1036. There the wife had filed a petition 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. Ewbank J stated at 1038:
"I have to say that a divorce petition does not stand in the same position as a writ in a civil action; a divorce petition is dealing with the status of parties and is subject to the rules set out in the Matrimonial Causes Rules 1977; it ought not to state that a marriage has broken down irretrievably if that is not the instructions of the client; and it ought to be served as soon as practicable after filing. It is not appropriate in the Family Division for petitions to be filed and held in secret and not served until it suits the petitioner."
As it happens, the wife's actions in that case did not affect the result. The husband's application for a stay was refused.
In this case the wife issued her petition on 26 October 2015 but took no steps to serve it until 19 January 2016. Perfect service on the husband was not achieved until 27 February 2016, four months and one day after the issue of the petition, when the husband was given the papers at Heathrow airport.
The husband says that the wife is guilty of the bad practice referred to by Holman J and Ewbank J.
Why does this matter? Before the advent of the original Brussels II Regulation (No. 1347/2000) the chronological sequence of competing petitions was of no great relevance in determining which was the most convenient forum in which the case should be heard. However, with the advent of Brussels II, incorporating the first past the post rule for determining jurisdiction, the question of the status of an unserved petition might be of critical importance.
The jurisdictional rules of Brussels II were modelled on those in the original Brussels I Regulation on civil and commercial matters (No 44/ 2001). That in turn replaced the Brussels Convention of 1968. In that Convention the rule in Article 21 was merely that "where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion decline jurisdiction in favour of that court." The CJEU had held that a court will be the one "first seised" when it "is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned": see 61983CJ0129">Zelger v. Salinitri 61983CJ0129"> [1984] ECR 2397 at 2408. Thus in Dresser U.K. Ltd. v. Falcongate Freight Management Ltd. [1992] QB 502 the Court of Appeal held that the English Court would not be definitely seised until the writ was served. All this was examined in Tavoulareas v Tsavliris [2004] EWCA Civ 48, where it was held on the facts that English proceedings had priority over Greek proceedings in a case governed by the 1968 Convention. All this is most interesting but is irrelevant to the matter which I have to decide as this is governed by Art 16 of Brussels II revised (No 2201/2003) which is in the same terms as Art 32 of the recast Brussel I Regulation (No 1215/2012) which in turn is in the same terms as Article 30 of the original Brussels I Regulation (No 44/2001). In Tavoulareas v Tsavliris Mance LJ acknowledged that Art 30 of Brussels I "would provide a simpler answer to the present issue".
Art 16 of Brussels II revised provides, so far as is material to this case:
"1. A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; …"
This seemingly simple language has been the subject of some analysis in the family field.
In Weiner v Weiner [2010] EWHC 1843 (Fam) reported sub nom W v W [2011] 1 FLR 372, at para 47 Holman J held:
"The Article does not say that a court is seised when the document has been lodged and the applicant has effected (or taken a required step to effect) service. It says that the court is seised when the document is lodged, subject to the proviso (which may only be assessed from some later perspective of hindsight) that there has not been a subsequent failure to take the required steps."
This mirrors the remarks of Lord Clarke in Re I (A Child) [2009] UKSC 10 [2010] 1 AC 319 at para 87:
"As I see it, as stated above, the way article 16 works is that there is seisin on the date identified subject to a condition defeasant. That is not a case of apparent seisin maturing into actual seisin but there being actual seisin, which would take priority over any subsequent seisin, unless there was no service or lodgement."
If I may say so, these observations are to state the obvious, and no alternative grammatical construction of Art 16 can suggest otherwise. Thus there is actual seisin on issue but that seisin can be defeated if it is later shown that the applicant failed to take the steps she was required to take to have service effected on the respondent. And the required steps are those prescribed by the domestic law of the country in which the application was issued (in contrast, it seems, to the position under the Brussels Convention 1968 – see Tavoulareas v Tsavliris at para 31 per Mance LJ and at para 45 per Thorpe LJ).
Therefore, as Mr Pocock QC accepts, on 26 October 2015 this court became seised of the divorce proceedings when the petition was issued. It would only become "unseised" if it could be shown that...
To continue reading
Request your trial
-
Oliver Thum v Catja Marion Thum
...23. P v M (C-507/14) (16 July 2015, unreported). R v R (divorce: stay of proceedings)[1995] 1 FCR 745, [1994] 2 FLR 1036. Thum v Thum[2016] EWHC 2634 (Fam), [2017] 1 FCR 69, [2016] 4 WLR 171, [2017] ILPr Totty v Snowden[2001] EWCA Civ 1415, [2002] 1 WLR 1384, [2001] 4 All ER 577, [2002] CP ......
-
Asfana Lachaux v Bruno Lachaux
...the Family Procedure Rules 2010 the default position was that the court would serve the process, not the petitioner (see Thum v Thum [2016] EWHC 2634 (Fam) at para 17). Many other countries maintain that as their default position. The focus of the enquiry is on whether the respondent was gi......
-
Thum v Thum
...Tchenguiz and Ors v Imerman[2010] EWCA Civ 908, [2011] Fam 116, [2010] 3 FCR 371, [2011] 1 All ER 555, [2010] 2 FLR 814. Thum v Thum[2016] EWHC 2634 (Fam), [2017] 1 FCR 69, [2016] 4 WLR 171, [2017] ILPr Thum v Thum[2018] EWCA Civ 624, [2018] 3 FCR 568, [2019] 2 WLR 127, [2019] 1 FLR 380. Ti......
-
Mb v Tb (Jurisdiction: Divorce: Court First Seised)
...1008, (1981) 73 Cr App R 159, [1981] Crim LR 624. R v R (divorce: stay of proceedings)[1995] 1 FCR 745, [1994] 2 FLR 1036. Thum v Thum[2016] EWHC 2634 (Fam), [2017] 1 FCR 69, [2016] 4 WLR 171, [2017] ILPr Thum v Thum[2018] EWCA Civ 624 (12 July 2018, unreported). UBS AG (London Branch) v Ko......