L-K v K (Brussels II Revised: Maintenance Pending Suit)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singer |
| Judgment Date | 10 February 2006 |
| Neutral Citation | [2006] EWHC 153 (Fam) |
| Date | 10 February 2006 |
| Court | Family Division |
| Docket Number | Case No: FD05D01649 |
[2006] EWHC 153 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Singer
Case No: FD05D01649
Timothy Scott QC (instructed by Charles Russell LLP) for the Petitioner
Charles Howard QC and Philip Marshall (instructed by Payne Hicks Beach) for the Respondent
Hearing dates: 13 January and 10 February 2006
SINGER J
This judgment is being handed down in private on 10 February 2006. It consists of 48 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
On 13 January 2006 I heard a full day of submissions in relation to a claim for maintenance pending suit made by Mrs L-K (W) which was founded upon her divorce petition issued in London on 24 March 2005. I give leave for this judgment to be publicised in this anonymised form, and suggest that it should be cited as LK v K (Brussels II Revised: maintenance pending suit).
W contends that this country's courts have jurisdiction to hear the suit and should award her maintenance pending its conclusion on the basis that both she and Mr K (H) were habitually resident here on that date, a jurisdictional foundation which he disputes. That issue is set to be determined by one of my colleagues at a three day hearing to commence on 1 March 2006.
If the only issue in the case were the court's power to award maintenance pending suit in advance of the resolution of that jurisdictional issue then there could now be no contest. For the Court of Appeal has recently decided that the courts do have that power, in the as yet unreported case of Moses-Taiga v Taiga [2005] EWCA Civ 1013: see [18] to [21], and [34].
However these parties are most unfortunately driven into deep waters of legal turbulence by the quirk of fate that on that very same day H instituted divorce proceedings in Paris, relying on the undoubted fact that both spouses are French nationals.
The brief background to the maintenance pending suit application is as follows. W was born in Singapore and is 39. H was born in France and will shortly be 36. His work as an investment banker took him to Singapore where the parties met in 1994. In July 1996 they married in France, adopting the matrimonial régime of 'séparation de biens'. W subsequently applied for and was granted French nationality. The couple then lived between London and Tokyo for varying periods dictated by H's employment. Most recently, they would have moved to live together in London at the beginning of January 2005 if the marriage had not broken down in circumstances which are irrelevant for present purposes. There is one child of the family, their son now aged 21 months who lives with W in rented accommodation in London.
I do not have to consider the habitual residence issue and therefore need not detail the events which led to W moving to her current home, a flat at a rent of £2,000 per week selected with H's involvement and approved by him at the time she moved in on a six-month tenancy. But I must set out as succinctly as possible the history of the two sets of divorce proceedings, here and in Paris.
They were commenced (or purportedly commenced, in deference to H's argument that irregularity strikes at the very existence of effective proceedings here) on 24 March 2005. At the same time W issued a Notice in Form A to initiate ancillary relief proceedings. On 13 April 2005 H issued an application to dismiss her ancillary relief application, and asked that meanwhile the obligation on the parties to take the steps which would ordinarily lead to the First Appointment should be suspended.
On 22 April 2005 District Judge White, recognising that there was an argument over jurisdiction, ordered a stay of the English proceedings 'pending a hearing to determine jurisdiction pursuant to FPR rule 2.27A'. He appears to have done so of his own motion, fixing 29 April 2005 for a directions hearing on that issue.
On that day District Judge Million made a consent order based on letters from the parties' solicitors. He set a timetable for evidence to be filed which will culminate in the three-day fixture listed for 1 March 2006 to which I have referred. Pending that hearing, his order provides, District Judge White's stay on proceedings was to remain in force, and the First Appointment hearing date was vacated. It was this order which directed that 'the issue of jurisdiction as a whole' be listed for (as it transpired) 1 March 2006.
Next, on 19 September 2005 Judge Marchais at the Tribunal de Grande Instance of Paris gave judgment in relation to a hearing which had taken place before her on 6 September 2005. She decided that the French court was seised second and stayed the proceedings in her court 'until such time as the English court has ruled on its jurisdiction', which in context must allude to the habitual residence issue.
On 21st September 2005 W issued the application for maintenance pending suit which has been argued before me. It was first listed to be heard by a District Judge at the Principal Registry of the Family Division on 13 December 2005, but on 17 November 2005 McFarlane J made provision for evidence to be filed and transferred the application for hearing by a judge of the Family Division with a one day estimate for its duration. Inferentially McFarlane J thereby lifted the stay to the extent that he provided for W's application to proceed.
Meanwhile, in France on 3 October 2005 H lodged notice of appeal against the decision of Judge Marchais. The competence of that appeal has been confirmed after an interlocutory hearing in the Cour d'Appel, and the appeal hearing is awaited.
So as things currently stand a judge in France has determined that the English court became seised of the divorce proceedings earlier on the same day than the French court. That French judge has accordingly stayed the French proceedings pursuant to the provisions of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, commonly referred to as Brussels II Revised and to which I shall for brevity refer as BIIR. That Regulation came into force on 1 March 2005 and, subject to the dispute concerning habitual residence, it is clear from Article 3 that each country has jurisdiction to try divorce proceedings such as have been commenced in each territory.
Where there are concurrent proceedings in more than one Member State, then Article 19(1) of BIIR applies, which is in these terms:
'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.'
Article 16 defines the circumstances in which a court shall be deemed to be seised of proceedings of the relevant nature. It is essentially a definition provision. For present purposes it is sufficient to note that the issue which arises here appears to depend upon 'the time when the document instituting the proceedings or an equivalent document is lodged with the court', and that no question arises in relation to the proviso concerning the steps required to be taken to effect service on the other party: see Article 16(1)(a). It was drawn to my attention that the equivalent French-language text of BIIR refers to 'la date à laquelle' – the date rather than the time—such documents are lodged with the court, but it would be beyond the scope of this judgment, in my view, to embark upon any analysis of the potential effect of that linguistic nuance.
The French judge's decision is subject to appeal in France, the date for the hearing of which is scheduled to be after 1 March 2006. If the appeal is successful then (subject to any further appeal, if such be practicable, to the Cour de Cassation) the stay will be lifted, as a consequence of the appeal decision will be to establish France as the jurisdiction of the court first seised. In that event an equivalent obligation to stay proceedings here will arise for the English court pursuant to Article 19(3) read with Article 16. For these provisions govern both the English and the French courts. Meanwhile, however, if W fails here to establish that both spouses were habitually resident here at the date of presentation of the petition, then (subject again to any appeal for which leave would be required) the English proceedings will be dismissed for want of jurisdiction. Thereupon the French proceedings would no doubt be revived: for the timing issue leading to their current stay would have become irrelevant. Equally, if the French Cour d'Appel reverses the extant decision that the English court was first seised, then (subject always to any further appeal in France) the way will be cleared for proceedings there.
Mr Charles Howard QC and Mr Philip Marshall, who appear for H, invite me to predict the outcome of the French appeal and to conclude that his appeal challenging the decision ceding priority to this court will, or is very likely to, succeed. That appears to me to be a speculation too far. Whatever the evidence to support a contrary conclusion which H can muster, how can it be right (I ask...
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