Daniel Weiner (Husband) v Cecilia Weiner (Wife)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE HOLMAN |
| Judgment Date | 15 July 2010 |
| Neutral Citation | [2010] EWHC 1843 (Fam) |
| Court | Family Division |
| Docket Number | Case No. FD 08D00207 |
| Date | 15 July 2010 |
[2010] EWHC 1843 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before: Mr. Justice Holman
Case No. FD 08D00207
MR V. LE GRICE, QC and MRS. R. BAILEY-HARRIS (instructed by Speechly Bircham LLP) appeared on behalf of the husband.
MR. L. MARKS, QC and MR. D. NAGPAL (instructed by Hughes Fowler Carruthers) appeared on behalf of the wife.
INTRODUCTION, BACKGROUND AND ISSUES
I will call Mary Cecilia Weiner “the wife” and Daniel Severin Weiner “the husband”. They are both nationals of Sweden and were both born and brought up there. As well as their nationality, they retain other links with Sweden and jointly own two properties there; but they have both been habitually resident in England for about fifteen years. The husband works here and their two children (now aged nine and seven) were born here and go to school here.
Both the United Kingdom and Sweden are member states of the European Union and accordingly Council Regulation (EC) No. 2201/2003 of 27 November, 2003 (commonly known as Brussels II Revised or bis, and to which I will refer simply as “the regulation”) is part of the law both here and in Sweden. It is not in issue that under Article 3 of the regulation jurisdiction to divorce these parties lies with the courts of both England and Wales and Sweden. If, as has happened, proceedings relating to divorce are brought before the courts of both England and Wales and Sweden, the effect of Article 19 of the regulation, which I need not reproduce, is that the court first seised takes priority and the court second seised shall decline jurisdiction in favour of the court first seised. The overall issue at this hearing is, accordingly, was the court first seised the Principal Registry of the Family Division here in England and Wales or the Stockholms tingsrätt in Sweden. I will, for convenience, call them respectively the “English court” and the “Swedish court”.
Article 16 of the regulation is headed “Seising of a court” and provides as follows:
“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; or
(b) ….”
Both England and Wales and Sweden have systems of issue-then-serve so sub-paragraph (b) of paragraph 1 of the article is not directly in point, and it appears that there is no paragraph 2. There is no doubt, and it is not in issue, that the wife lodged the relevant documents with the English court before the husband did with the Swedish court. So the argument in the present case turns upon application of the proviso in paragraph 1(a) of Article 16. The husband says that the wife failed to take the steps she was required to take to have service effected upon him because, although her documents were actually served upon him very promptly, they were, on two occasions, served on a Sunday. This raises the question whether it is permissible to serve a petition for divorce (and/or a later supplemental petition) in England on a Sunday and if not, what are the consequences of doing so. The question: “can a petition for divorce be validly served on a Sunday?” is the simplest of questions and one might have thought that the answer would be clear-cut and part of the A, B, C of the law. Apparently it is not.
The reason why the issue arises is patently one of tactical manoeuvring by each of these parties in which, as I have been told today, they have now jointly invested around £120,000 to £130,000 in legal fees. As such, a divorce in either England or Sweden would be just as effective and just as appropriate as a means of dissolving their marriage. But each patently shares a common belief (whether correct or not) that the wife would receive greater financial provision if the divorce is here than if it is in Sweden.
The husband, who works for a bank, has produced a schedule of assets which asserts or admits that the overall wealth of these parties is just under £9 million, of which just over £800,000 is joint and the remainder in his sole name. So, quite considerably more or less for the wife may be at stake. Although both parties are each patently engaged in tactical manoeuvring, it is permissible to do so and each is perfectly entitled to seek to take advantage of the legal position as it now is in the events which have happened.
The following issues and questions arise:—
Was there in 2008 and 2009 any prohibition or restriction on serving a petition for divorce in England on a Sunday? If not, that is the end of this whole aspect of this case and the English court is unarguably the first seised.
If there was such a prohibition or restriction, what is the consequence or effect in English law of service on a Sunday?
In the light of the answer to 2 above and on all the facts of this case, has the proviso in Article 16 operated so that the English court is deemed to be seised after the Swedish court?
CHRONOLOGY
It is first necessary to set out at slightly more length the essential facts and chronology. The parties began living together in England, where they were both then working, in 1995. They have lived and been habitually resident in England ever since. They married in Sweden in 1999. Their two children were born in 2000 and 2002. Sadly, the marriage became unhappy. In early 2008 the husband was receiving in-patient treatment in a clinic. While the husband was at the clinic the wife issued a petition for divorce in the Principal Registry of the Family Division on 17 th January, 2008. That petition and the process of issue was in all respects regular. Accordingly, the document instituting the English proceedings was lodged with the English court for the purpose of Article 16 on 17 th January, 2008.
On 24 th January, 2008 the wife's then solicitors wrote a letter addressed to the husband c/o the clinic. The letter says in part that the wife,
“… is most distressed by recent events and sincerely hopes that you and she will be able to reconcile and rebuild your relationship. However, I have given [the wife] firm advice that she should take steps to establish her position in the event that it is not possible for you and she to resolve the problems you have been having …”
The writer continues, somewhat euphemistically,
“… I have advised her that it would be preferable for any divorce to be conducted in England. [The wife] has, therefore, taken my advice and started divorce proceedings here, even though it is not her wish that you and she divorce … [The wife] does not intend to take any further steps in the divorce proceedings, once you have acknowledged service, without you having had the opportunity to agree the way forward with her once you have completed your stay at [the clinic].”
The letter concludes by recommending to the husband “at the outset” that he consult a solicitor and giving him helpful information as to how to identify a suitable one. The writer of the letter is extremely experienced and renowned in this field, and patently appreciated the significance and importance of the step at that time of service. It was not intended to “hold the petition in secret and not serve it until it suited the petitioner” as referred to, and deprecated by, Mr. Justice Ewbank in R v R (Divorce: Stay of proceedings) [1994] 2FLR 1036 at p.1038f.
On Sunday, 27 th January, 2008 the wife, accompanied by a mutual friend, visited the husband at the clinic, and there the friend personally served upon the husband the petition and required accompanying documents and the letter from the solicitors dated 24 th January. It is not in issue that other than it was done on a Sunday, the service was in all respects regular. It might be questioned whether the device of the friend actually handing over the documents avoided the spirit, or even the letter, of the restriction on service by the petitioner personally in Family Proceedings Rules (FPR) rule 2.9(3), but that is not an objection which has been taken on behalf of the husband.
The wife says that Sunday was the only day upon which visits were allowed to the clinic and that she did not want the petition to be sent impersonally through the post or served there by a process server. In other words, the service was deliberately done on a visit (which could only happen on a Sunday) in order, as it were, to soften the blow. The husband fully admits that he was served with all the required documents. He did not actually return any acknowledgement of service at the time, and a little while after he left the clinic the parties attempted a reconciliation in April 2008.
Neither took any further steps of any kind in relation to the English proceedings during the fourteen months of attempted reconciliation. The wife says that unfortunately the unhappiness persisted or re-emerged and the parties finally separated in June 2009 when the husband left home.
Clearly at some stage the wife re-consulted her then solicitors. On Thursday, 12 th November, 2009 the solicitors, on her behalf, filed in the Principal Registry of the Family Division a supplemental petition. This refers to the resumption of cohabitation and the allegation that the husband's behaviour was continuing and that as a result the wife had asked the husband to leave in June 2009, and he had done so.. The supplemental petition concludes with the words, “The petitioner therefore prays as before”. The wife could, alternatively, have applied under FPR Rule 2.6(4)...
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