Luca Manetta v Katia De Filippo
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Coulson,Lord Justice Baker |
| Judgment Date | 29 March 2022 |
| Neutral Citation | [2022] EWCA Civ 409 |
| Docket Number | Case No: CA-2021-000470 |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 409
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HH Judge Lynn Roberts
ZC16D00120
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lord Justice Coulson
and
Lord Justice Baker
Case No: CA-2021-000470
Tim Amos QC and Grant Lazarus (instructed by MSB Solicitors) for the Appellant
Stuart McGhee (instructed via Direct Public Access) for the Respondent
Hearing dates: 16 December 2021
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10:30am on Tuesday 29 March 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
This is an appeal against the decision of HH Judge Roberts in December 2020 to lift a stay on a divorce petition which had been in place since June 2016. The stay had been imposed because at that point there were judicial separation proceedings ongoing in a court in Turin so that the Italian court was “first seised” of matrimonial proceedings. The English petition was, however, never dismissed with the result that, when the judicial separation proceedings came to an end and before divorce proceedings were started in Italy, the English court became first seised. The question arising on this appeal is whether Judge Roberts erred in not dismissing the petition “retrospectively”.
At all material times, both Italy and the UK were members of the European Union and governed by the jurisdictional rules in Council Regulation (EC) 2201/2003 concerning jurisdiction and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels IIa”). The relevant provisions of the regulation are as follows.
Article 3, headed “General jurisdiction”, provides:
“1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State
(a) in whose territory:
— the spouses are habitually resident, or
— the spouses were last habitually resident, insofar as one of them still resides there, or
— the respondent is habitually resident, or
— in the event of a joint application, either of the spouses is habitually resident, or
— the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
— the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.”
It is not disputed that, under at least one of the provisions in Article 3, both the courts of Italy and the courts of England and Wales have jurisdiction in respect of matters relating to the divorce or legal separation of the parties in this case.
Article 5, headed “Conversion of legal separation into divorce”, provides:
“Without prejudice to article 3, a court of a Member State that has given a judgment on a legal separation shall also have jurisdiction for converting that judgment into a divorce, if the law of that Member State so provides.”
Article 16, “Seising of a court”, provides:
“(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) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.”
Article 17, headed “Examination as to jurisdiction” provides:
“Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.”
Article 19, headed “Lis pendens and dependent actions”, provides, so far as relevant to this appeal:
“(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 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.”
Articles 22 and 23 of BIIa set out grounds for the non-recognition of, respectively, judgments relating to divorce, legal separation or marriage annulment and judgments relating to parental responsibility including, under Article 22 (a) and Article 23 (b), if such recognition is manifestly contrary to the public policy of the Member State (taking into account, under Article 23 (a), the best interests of the child). Article 24, headed “Prohibition of review of jurisdiction of the court of origin”, provides:
“The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22 (a) and 23 (a) may not be applied to the rules relating to jurisdiction in Articles 3 to 14.”
Rule 7.27 paragraphs (2) to (5) of the Family Procedure Rules 2010 set out the procedure to be followed in the English family court for complying with the above provisions in Brussels IIA.
“(2) Where at any time after the making of an application under this Part it appears to the court in matrimonial proceedings that, under Articles 16 to 19 of the Council Regulation, the court does not have jurisdiction to hear the application and is or may be required to stay the proceedings, the court will
(a) stay the proceedings; and
(b) fix a date for a hearing to determine the questions of jurisdiction and whether there should be a further stay of the order.
(3) The court must give reasons for its decision under Articles 16 to 19 of the Council Regulation and, where it makes a finding of fact, state such finding of fact.
(4) An order under Article 17 of the Council Regulation that the court has no jurisdiction over the proceedings will be recorded by the court or the court officer in writing.
(5) The court may, if all parties agree, deal with any question about the jurisdiction of the court without a hearing.”
The parties, who are Italian nationals, were married in Turin on 8 July 2006. At the time of the marriage, they selected the Italian community property regime but in 2008 they executed a notarised deed opting for separation of property. This step was taken after the death of the husband's uncle, a man of substantial means, who had designated the husband as his sole heir.
There is one child of the marriage, I, now aged 11.
In 2009 the parties moved to London where they purchased a property in joint names.
In January 2016, the parties separated. The husband moved back to Turin and the wife and I, having left the family home, moved to alternative accommodation in London. On 23 March 2016, the husband issued a judicial separation petition in Turin. On 19 May 2016, the wife filed a divorce petition in the Central Family Court in London, together with an application for a financial remedies order.
On 1 June 2016, the wife's petition was stayed by order of the court without a hearing, “pending determination in relation to jurisdiction”. Under a further order dated 23 June, the stay was extended by consent “until the Turin court has pronounced upon seisin under Article 16”. The order recorded that the parties accepted “that questions concerning seisin under Article 16 and 19 [of the Brussels IIA regulation] are for the Italian courts to determine”. By a further order made by consent on 27 July 2016, the paragraph of the previous order extending the stay was “to continue unamended”. The order also provided that each party would have permission “to apply to lift the stay and dismiss the petition or seek further directions following determination of jurisdiction by the Italian court”.
There followed a series of other proceedings between the parties, including an application by the wife under s.8 of the Children Act 1989 for a child arrangements order in respect of the parties' child, I, issued in the West London Family Court on 29 August 2016, an application by the wife under the Trusts of Land and Appointment of Trustees Act 1996 (“ ToLATA”) in respect of the parties' former family home in London, issued in the Central London County Court on 6 October 2016, an application by the wife under Schedule 1 of the Children Act 1989 for a school fees order and child maintenance, issued in the West London Family Court on 18 October 2016 and an application by the husband for declaratory relief in respect of an inheritance received from his late uncle, issued in the court in Turin on 19 October 2016.
Thereafter, a large number of orders were made by courts in the proceedings in both jurisdictions, of which only a few are relevant to the issue arising on this appeal. They illustrate the extensive arguments about jurisdiction that have bedevilled these proceedings.
On 22 March 2017, District Judge Jenkins sitting in the West London Family Court made an order in the Schedule 1 proceedings in which he recorded his...
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