Mb v Tb (Jurisdiction: Divorce: Court First Seised)

JurisdictionEngland & Wales
CourtFamily Division
Judgment Date31 July 2018
Neutral Citation[2018] EWHC 2035 (Fam)

Jurisdiction – Divorce petition – Service – Legally ineffective attempts – Seisin – Rival petition in foreign jurisdiction issued before valid service effected – Whether ‘active diligence required’ – Whether abuse of process – Whether wife truly believed marriage had broken down irretrievably or was issuing solely to gain jurisdictional advantage.

Both the husband and wife were German nationals; they lived together in England from 2008 onwards. In early 2015, after it was revealed that the husband had had an affair, the husband moved back to Germany; however, the couple agreed to attend counselling in an attempt to repair the relationship and not to file for divorce. The couple duly attended counselling until, in February 2016, the husband confirmed that he had begun a new relationship. In May 2016, the wife consulted solicitors and on 8 July 2016, she issued a divorce petition in England. Although her then solicitors had requested that the petition be returned to them for solicitor service, the Bury St Edmunds Divorce Unit sent it directly to the husband by post.

The wife sent the husband a WhatsApp message saying that she was as upset as him by what had happened, acknowledging that the petition had been sent by the court by mistake. The wife then sent the husband an email with a pdf of her petition; in addition, her solicitors sent him a copy through the post, plus an email attaching the petition and also made arrangements for a German lawyer to serve the husband personally at his office with an original of the petition. None of these attempts to serve the husband complied with the requirements of FPR 2010, r 6.43(3); nor were they valid under German law. On 16 August 2016, the husband issued a divorce petition in Germany and initiated the approved service procedure through the German authorities and the Foreign Process Section. On 22 August 2016, the husband filed an acknowledgement of service to the wife’s English divorce petition, asserting that the German court was first seised, ‘owing to failures to comply with art 16 and 19 of Council Regulation (EC 2201/2003) and relevant articles of the EC Service Regulation (EC 1393/2007)’. The wife then initiated valid service of her English petition on the husband, also using the Foreign Process Section, in September 2016, and achieved valid service by November 2016. The husband’s German petition was validly served on the wife after the wife’s English petition had been validly served on the husband.

Because of this dispute over jurisdiction the wife’s English petition was transferred first to the Central Family Court and then to the Family Division. On 21 October 2016, the husband undertook not to take any steps to progress his German petition or his German financial application, pending determination by the English court of the issue as to jurisdiction. The directions given included directions for the disclosure of the wife’s previous solicitors’ file, legal professional privilege having been waived and the file being considered relevant to the issue both of service and of potential abuse of process.

The case was adjourned until after judgment had been handed down in Thum v Thum[2018] EWCA Civ 624; in that case the Court of Appeal confirmed that FPR r 7.8 contained no requirement that a petition must be served within a stipulated period and declined to imply into the rules either a specific time limit or words such as ‘as soon as possible’. The husband argued that nonetheless, the wife had to demonstrate ‘active diligence’ and that, given the international context and two valid jurisdictions, the court should apply a higher threshold in terms of compliance with service rules than it might apply to a purely domestic case.

The principal issues were: (i) Was the issuing of the wife’s English petition an abuse of process, because she did not at that time consider the marriage to have irretrievably broken down but was issuing a petition simply to secure the English jurisdiction in the event that a divorce was needed? (ii) Following seising of the English court, had the wife subsequently failed to take the steps she was required to take to have service effected on the husband?

Held – (1) Applying Thum v Thum[2018] EWCA Civ 624, English procedural law imposed no requirement as to time for service. A party who failed to meet a time limit and was shown not to have been actively diligent might end up in a situation where their proceedings had been overtaken, but attempts to serve which were not compliant with the Family Procedure Rules 2010 or the EU Service Regulation could not constitute a failure to take the steps required, when there was no requirement to take any step, beyond not acting in a way which amounted to an abuse of process. If attempts to serve which were procedurally incorrect (but which might have in fact have provided the respondent with the documents) could lead to the proviso biting when doing nothing would not do so, there would be a premium to doing nothing, rather than doing something to bring the proceedings to the attention of the respondent. This would be inconsistent with the fundamental objective of the rules as to service, rooted in art 6 of the European Convention on Human Rights, namely fairness to a respondent in notifying them of proceedings brought against them and also fairness to an applicant in enabling them to bring a matter before a court. Given that the only requirement under English procedural law was to serve the petition, which had certainly been done by November 2016, the wife had not failed to take the steps she was required to take to have service effected (see [33], [36], [43], below).

(2) Issuing a petition to gain some jurisdictional advantage rather than because of a wish to get divorced was likely to be construed as an abuse of process. For these purposes, the court was prepared to assume that it would amount to an abuse of process if a spouse issued a divorce petition at a time when they did not believe the marriage had irretrievably broken down, or perhaps even if they issued believing the marriage had irretrievably broken down, but at a time when they did not actually want to get a divorce themselves, and their intention was purely to seize a favourable jurisdiction, with no intention to serve the petition unless effectively forced to do so by the other party either issuing divorce proceedings or indicating an intention to do so (see [35], below).

(3) Preferring the wife’s evidence to the husband’s evidence, the court concluded that the issue of the wife’s English petition in July 2016 had been motivated by the wife’s desire to get divorced. This had been a genuine petition designed to be served by a proper method and to bring the marriage to an end. The evidence as to communication between the wife and her former solicitors from the issue of the petition onwards was consistent with a desire by the wife to serve the petition immediately, but validly. Occasional references to what had happened being a disaster were easily understood in the context of the wife being dismayed at the possibility of the husband being given an opportunity to overtake her petition and her desire to avoid confrontation with the husband. The wife’s petition had not been an abuse of process (see [39], [40], [42], below).

(4) The wife’s ineffective steps to serve in July 2016 had had no legal effect but the court was satisfied that by the time the husband had given instructions for the German petition to be issued, he had seen and read the English petition; his petition had been a considered attempt to overtake the wife’s petition and to take advantage of the errors committed in relation to service. The husband had had actual notice that the wife had issued a divorce petition by, at the latest, 24 July 2016. By the end of July all the documents had been available to him; he had probably read them and if he had not this had been a deliberate choice. Although the court did not strictly speaking need to consider the question of waiver of defects in service, on the basis of the law set out in Thum, the court would have concluded that it would be just to waive the defects in service in the circumstances. Taking on board the submission that the court should be slow to waive defects in service in cases where there was another member state with a valid concurrent jurisdiction, ultimately, it was English procedural law that had to be applied. The heart of the test was fairness as between the parties. In this case it would have been fair to waive the defects; indeed in the circumstances, it would have been unfair not to do so. It would have been entirely counterintuitive on the facts of this case to hold that the husband had not been validly served, when it was as clear as daylight that he had actually been served, had been fully aware of the divorce process in England and had sought to achieve a tactical advantage by issuing his own petition and immediately seeking service in accordance with the EU Service Regulation. That course of action had been legally open to the husband but it had its consequences (see [44], [45], below).

(5) The English court was seised of the wife’s divorce petition and that seisin had not been defeated by any failure by the wife (see [46], below).

Statutory provisions referred to

Family Procedure Rules 2010 (SI 2010/2955), r 6.4, r 6.9, r 6.11, r 6.43, r 6.43(3), r 6.44, r 78.

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, art 30.

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, art 8, art 12 art 16, art 16(1), art 161(b), art 19.

Council Regulation (EC) No 1393/2007 of 13 November 2007 on the service in the Member States of judicial and...

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1 firm's commentaries
  • Jurisdiction And Applicable Law In Divorce: How To Secure, How To Defend
    • United Kingdom
    • Mondaq UK
    • 1 November 2018
    ...had not met one of the criteria needed to file for divorce but the recent cases of Thum v Thum [2018] EWCA Civ 624 and MG v MG [2018] EWHC 2035 (Fam) show that delay of service of a petition is unlikely to be sufficient for the English Court to decline dealing with the Non EU member state -......

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