Wermuth v Wermuth
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe |
| Judgment Date | 04 February 2003 |
| Neutral Citation | [2003] EWCA Civ 50 |
| Date | 04 February 2003 |
| Docket Number | B1/2002/2290 FAFMI |
| Court | Court of Appeal (Civil Division) |
[2003] EWCA Civ 50
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICEFAMILY DIVISION
(MR JUSTICE JOHNSON)
Lord Justice Thorpe
Lord Justice Latham and
Mr Justice Lawrence Collins
B1/2002/2290 FAFMI
NICHOLAS MOSTYN QC and RICHARD TODD (instructed by Messrs Mishcon De Reya of London WC1R 4QD) appeared for the appellant
LEWIS MARKS QC and TIM AMOS (instructed by International Family Law Chambers of London WC2R 1AP) appeared for the respondent
THORPE LJ:
The issue in this appeal is the proper construction of Article 12 of the Council Regulation generally known as Brussels II. Its official designation is Regulation (EC) No 1347/2000. It came into force on 1 March 200The primary purpose of the Regulation was to avoid jurisdictional conflicts between the states of the European Community in cases for divorce, judicial separation and nullity (to use our terminology). Thus the Regulation is entitled 'On the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses'.
In the event Denmark elected not to be a party to the Convention negotiations that culminated in the Regulation with the consequence that it binds only the 14 other member states. During the negotiating process the United Kingdom held profound reservations at the prospect of resolving jurisdictional conflicts in this field by the rule of lis alibi pendens rather than by the doctrine of forum conveniens, which had statutory expression in paragraph 9 of Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973. That provision, of course, continues to regulate conflicts between this jurisdiction and jurisdictions other than the 14 member states of the European Union.
The objection to the proposed convention was encapsulated in two arguments: first that an arbitrary rule of lis alibi pendens was a poor substitute for a balanced discretionary appraisal of fairness and convenience that the doctrine of forum conveniens permits. The second argument was that the introduction of a rule giving priority to the court of first issue would inevitably encourage a rush to be first, eliminating or minimising attempts at reconciliation or conciliation. However the experience of 18 months of operation has been reassuring. Research carried out by specialist practitioners in London and Edinburgh in preparation for the Fourth Anglo-German Family Law Judicial Conference in September 2002 did not suggest that the Regulation had resulted in any significant shift in accepted standards of professional good practice at the stage when divorce proceedings are in contemplation. Furthermore, in relation to the first argument, the loss of an ability to conduct a balanced judgment of the more appropriate jurisdiction is compensated by the elimination of the need for expensive litigation (generally conducted concurrently in both jurisdictions) as each party manoeuvres to establish the jurisdiction of his or her preference as the more convenient jurisdiction.
With that introduction to the Regulation I turn to the facts in the present appeal. The parties are in their mid 30s, the husband being basically German and the wife Russian. They married on 20 September 1997 in Russia. Since 1999 they have had homes in England and Germany. On 28 April 2000 they entered into a marriage contract in Germany. On 13 February 2002 the wife became a naturalised German citizen. In the same month they seemingly decided to make London their main base but separated at the end of March 2002. On 12 April 2002 the lease on the wife's London flat terminated and thereafter the husband did not know her address. Accordingly on 8 May 2002 the husband swore an affidavit seeking an order for substituted service of the German petition that he was preparing to issue. The petition was filed in the Mainz Amtsgericht on 14 May. On the previous day the husband sent the wife an e-mail letter:
"Dear Yana, I have filed for divorce. For you to receive the papers, could you please let me have your address such that the documents could be delivered to you personally? Thanks. Jochen."
The wife responded at length on the following day but ignored the request. The request was repeated in an e-mail on 16 May. The wife's e-mail response of the following day stated that the papers could be served at Atelier 214, 176 Finchley Road, which was a post office box set up by the wife on that very day for the receipt of mail.
Accordingly on 20 May the husband applied for an order for substituted service. The order was made on 24 May and, under its terms, service was deemed to have been effected on 12 June.
The wife's competing divorce proceedings in this jurisdiction were filed on 24 May and were deemed served by an order for substituted service made on 11 June. On 26 June the husband applied to strike out the wife's English petition on the obvious ground that primary jurisdiction lay with the Amtsgericht in Mainz. That application came before Deputy District Judge Solomons on 13 August 2002. Both parties appeared by counsel. There are two recitals to the order as follows:
"(a) Both parties have agreed that it is their intention that the hearing in the German divorce proceedings fixed for 27 August 2002 should proceed;
(b) no steps should be taken in the English divorce proceedings, including ancillary relief, save under Article 12 of the Brussels II [Regulation] pending the hearing in England referred to at paragraph 1 below."
Paragraph 1 of the order provided that the husband's strike-out application be heard by a judge of the Division on the first open date after 15 November. The other provisions of the order regulated the filing of evidence in preparation for that hearing.
The hearing in Germany referred to in the first recital was to have been the hearing of the husband's application for an order that the Mainz Amtsgericht was first seised within the terms of Regulation Brussels II and that the husband had established the jurisdictional grounds for divorce. We were told that the hearing had to be adjourned since an interpreter had not been arranged for the wife.
On 24 September in reliance on the second recital to the order of 13 August the wife issued an application for maintenance pending suit. We were told that District Judge Million on about 15 October referred it to be heard by a judge of the Division and that hearing took place on 22 October before Johnson J. How the wife obtained a full hearing before a judge of the Division only seven days after the district judge's direction I do not know.
Before Johnson J counsel for the husband submitted that the wife's application for maintenance pending suit did not fall within the exceptions provided by Article 12 of the Regulation. Mr Justice Johnson rejected that submission and ordered the husband to pay maintenance pending suit at the rate of £150,000 a year, two thirds of which was intended to provide funds with which to enable the wife to litigate. The order was backdated to 11 June 2002, the date of service of the wife's petition. The payment in respect of the period 11 June to 10 November (£62,500) was ordered to be paid on or before 2 December and future payments due on 11 November and subsequently were ordered to be paid monthly in advance by standing order. The judge refused an application for permission to appeal and for a stay. Those applications were subsequently granted by me on paper on 7 November. However permission was granted only to argue the Brussels Regulations points. By a further ground the husband sought to challenge the practice (approved in two recent first instance authorities) of including within a maintenance pending suit order provision for litigation costs. I refused permission to advance that ground only in the circumstances of this case and this judgment is not to be read as an implicit approval of the practice.
The hearing in Mainz, adjourned from 27 August, duly took place on 10 October. Judgment was delivered on 14 November. The essential conclusions of that judgment are as follows:
i) The court had jurisdiction under Article 2 of the Regulation, both parties being German nationals.
ii) The German court was first seised under the provisions of Article 11.4(a).
iii) The husband's application for substituted service was well founded since at the material time he did not know where the wife was living. The wife's contention that the husband had been devious in seeking substituted service of his petition was rejected. Furthermore the court made the contrary finding that the wife had been endeavouring to avoid service of the husband's petition.
The husband's application to strike out the wife's petition, fixed by paragraph 1 of the order of 13 August, was heard by Bracewell J on 9 December. There was no dispute that the court had jurisdiction founded on the wife's habitual residence throughout the twelve months immediately preceding the presentation of the petition. However Bracewell J, like the judge in Mainz, concluded that primary jurisdiction rested with the Mainz court as the court first seised. However, given that Mr Amos relied on the wife's intention to appeal the Mainz judgment of 14 November, counsel for the husband accepted that the appropriate consequential order was for a stay of the English petition rather than a strike-out.
I turn now to the regulations and rules directly relevant to this appeal. Article 2 of Brussels II sets out the basis upon...
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