Wermuth v Wermuth
| Jurisdiction | England & Wales |
| Judge | MRS. JUSTICE BRACEWELL |
| Judgment Date | 09 December 2002 |
| Neutral Citation | [2002] EWHC 3049 (Fam),[2002] EWHC 3120 (Fam) |
| Court | Family Division |
| Date | 09 December 2002 |
| Docket Number | FD02D03730 {PRIVATE } |
[2002] EWHC 3049 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mrs. Justice Bracewell
(in Private)
FD02D03730 {PRIVATE }
MR. T. AMOS (instructed by International Family Law Chambers) appeared on behalf of the Petitioner.
MR. R. TODD (instructed by Messrs. Mishcon de Reya) appeared on behalf of the Respondent.
(As approved by the Judge)
This is the husband's application for a stay of the wife's petition for divorce and ancillary relief filed in this jurisdiction, pending the determination of the husband's petition for divorce in the jurisdiction of Germany. This case involves consideration of the articles of the Brussels 2 Convention. The full title is the Council Regulation (EC) No.1347/2000 of 28 May 2000, which came into force on March 1st 2001. It binds all the European Community states (with the exception of Denmark) and it is an extension of the 1968 European Convention on jurisdiction and enforcement of the judgments in civil and commercial matters.
The purpose of Brussels 2 is to unify the rules of conflict of jurisdiction in matrimonial matters and in cases relating to parental responsibility. By the preamble recital (4) the object is “so as to simplify the formalities for rapid and automatic recognition and enforcement of judgments”. The aim is to prevent complex and prolonged arguments over the forum conveniens when there are competing jurisdictions within the European Community.
Article 2 sets out the rules of direct jurisdiction giving a multiple choice of jurisdictional connecting factors based on habitual residence or nationality, with no hierarchy. It is common ground between the parties in the current case that on the tests 1 to 7 set out in Article 2, both Germany and England and Wales fulfil the criteria for jurisdiction. It is provided by Article 11 that although courts may have concurrent jurisdiction, the courts must defer to the court first seised of the case.
Under Article 11.4(a) a court is deemed to be seised of a case 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”.
Under Article 9 in respect of declining jurisdiction a court must, if the court of another member state has jurisdiction, declare of its own motion that it has no jurisdiction if it is seised of a case over which it has no jurisdiction under the Regulation. There is no power to decline jurisdiction in favour of an allegedly more appropriate forum and there is no power to declare this to be a more appropriate forum if another jurisdiction within the European Community is seised of the case.
The effect of Brussels 2 is that where a party issues proceedings for divorce, legal separation or marriage annulment in the jurisdiction of a member state, the court of the state in which proceedings are first issued shall have exclusive jurisdiction and any proceedings for the same relief subsequently issued in another member state must be stayed once jurisdiction in the first is established. Effectively, it is a race with the winner being the one who commences the proceedings first.
The issue arises in this case whether the husband had taken the steps required to have service effected on the wife and whether the findings and order of the German court at Mainz on November 14th 2002 preclude the wife's petition from being heard in this jurisdiction.
The German proceedings by the husband were issued on May 14th 2002, and the English proceedings of the wife were issued on May 24th 2002. The wife's petition was served first on June 11th 2002 by substituted service by order of the district judge. The husband's petition was deemed served by public display in Germany on June 12th 2002.
The brief background is that the husband is 32 years old, of dual American and German nationality, and he runs businesses in both England and Germany. The wife is 35 years old, of Russian birth, but is now a German citizen who currently lives in London with her child of her previous marriage to a Russian. She and the child live in a home in Fulham, London, purchased in March 2002. The parties married in Russia in 1997 and have subsequently cohabited in Moscow, London and Germany. They separated around the end of March 2002. During the marriage the parties in February 2002 had decided to make the family home in London where they already had some property, but this was a short-lived intention and by March 30th the marriage was over.
On April 7th 2002 the wife vacated her Belsize Park flat when the lease came to an end, and did not inform the husband of any new address. The husband contends that despite requests the wife refused to give him any new address. The wife, on the other hand, contends that she was never asked for an address until May 13th when she either refused and/or failed to give the information. This conflict of evidence was subsequently decided by the German judge at Mainz in the husband's favour.
On May 8th 2002 the husband swore an affidavit in support of an application for substituted service of his divorce petition in the German court on the ground that he did not have an address for service. It is common ground between the parties that at that date the husband's contention was factually accurate, although the parties were communicating by e-mail in late April and early May and therefore had e-mail addresses for communication. On May 13th the husband e-mailed his wife that he intended to issue divorce proceedings in Germany. The wife acknowledges that this e-mail was sent to her. The husband asked for the wife's address for personal service. She replied by e-mail on May 14th but that e-mail does not contain an address for the wife. On May 16th by e-mail the husband asked again for an address for service of the divorce petition.
On May 17th the wife responded by e-mail: “The papers can be served at the following address: Atelier 214 176 Finchley Road, London NW3 6BT, UK”. No explanation is given in that e-mail by the wife in respect of the address, nor what type of establishment is the Atelier. It was in fact an e-mail box in respect of which the wife had entered into an agreement to receive mail on May 17th 2002. Under the agreement the wife was entitled to refuse to accept recorded delivery mail.
On May 20th the husband decided to proceed with an application for service by public notice. On May 22nd the German court confirmed that the application was being processed. On May 24th the Mainz district court made an order that service of the petition might be effected by public notice. On June 12th such service was treated as effective. On June 26th the husband gave notice of an application to strike out the wife's English petition.
On October 10th 2002 the Mainz district court held a hearing in order to determine whether that court was first seised under Article 11 and whether the husband had established the jurisdictional grounds for divorce. At that hearing the parties were both represented by lawyers and both gave evidence. On November 14th 2002 the Mainz court delivered judgment, which is to be found at pp.264 to 274 of the bundle. In summary, the court found as follows:
1. The court seised did have international jurisdiction which was governed by Article 2 of the Council Regulation No.1347/2000. As both parties had German nationality the German courts were found to have jurisdiction under Article 2.1(b) of that Regulation and under the sixth alternative in Article 2.1(a)(vi).
2. Under Article 11.3 of the Regulation where divorce petitions are filed by parties in courts in different member states, the court second seised must decline jurisdiction in favour of the court first seised. The court found that the German court was first seised within the meaning of Article 11.4(a).
3. The husband's divorce petition was lodged with the Mainz court on May 16th 2002 and the court costs paid, whereas the English court was not seised until May 24th 2002. The court found that the husband applied for service to be effected by public notification as he did not know the wife's address. There were other findings to which I shall refer later in this judgment.
Mr. Amos, on behalf of the wife, has informed this court that the wife is appealing the decision and orders of the court at Mainz. That appeal is pending and no grounds of appeal have yet been drafted. By reason of the anticipated appeal, I am invited by Mr. Todd, on behalf of the husband, to stay rather than dismiss the English proceedings so that, in the event of the appeal being successful, the wife could re-open the matter in this jurisdiction. But if the appeal failed, then the English proceedings would be dismissed.
Mr. Amos seeks to attack the German decision as unsupportable and relies on Professor Schlosser's opinion. Professor Schlosser is the author of the report on the 1978 Accession Convention, which was Brussels 1. The Professor attacks the decision of the Mainz court essentially on four grounds:
1. The court was in error in not revealing a legal basis for the decision and did not follow correct procedure in that the judge decided on the lis alibi pendens issue and erroneously believed it was an issue of admissibility of the law suit, and confused an interim judgment and a simple court order which gives rise to different consequences and rules of appeal.
2. The inadequate steps taken by the husband to effect personal service when he knew the wife's e-mail...
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