Wermuth v Wermuth

Article 12 of Council Regulation (EC) No 1347/2000 is to be construed strictly. It permits urgent provisional or protective measures by a court which lacks substantive jurisdiction only where they support, rather than invade, the function of the court first seised.

An indefinite order for maintenance pending suit was neither protective nor provisional where repayment was unrealistic and the order could affect the financial outcome in the primary forum. It was also not urgent where relief could have been sought from that forum. In the absence of clear irregularity, there is a strong presumption that the court in which proceedings were first instituted is the court first seised.

The husband, a German national, petitioned for divorce in Mainz after seeking substituted service. The wife then issued competing English divorce proceedings and applied in England for maintenance pending suit. Johnson J held that Article 12 of Council Regulation (EC) No 1347/2000 authorised the interim order and required the husband to pay £150,000 a year, largely to fund the wife’s litigation.

The Mainz court and Bracewell J subsequently concluded that the German court was first seised, although the German decision was said to be subject to appeal. The husband appealed solely on the application of the Brussels II Regulation. The central issue was whether maintenance pending suit could be an urgent provisional or protective measure within Article 12.

1. Appeal allowed unanimously. Thorpe LJ delivered the leading judgment, with which Latham LJ agreed. Lawrence Collins J also agreed and added observations. The order for maintenance pending suit was discharged.

2. Article 12 of Council Regulation (EC) No 1347/2000 permits a court without jurisdiction over the substance to grant only urgent provisional or protective measures available under its national law. Such measures must support the main proceedings in the court having substantive jurisdiction. They cannot be used to pre-empt or undermine that court’s determination.

3. The court applied the principles derived from De Cavel v De Cavel and Reichert v Dresdner Bank AG (No 2), which concerned the corresponding Brussels I provision. Maintenance pending suit could not be characterised as a protective measure. Nor, on these facts, was it provisional. The order was for an indefinite period at a substantial annual rate and there was no realistic prospect of repayment if the wife failed in the substantive financial proceedings. That result accorded with Van Uden Maritime BV v Firma Deco-Line, [1998] ECR 1-7091.

4. The case was not urgent. The wife could have sought interim maintenance in Mainz. A strict construction also furthered the Regulation’s purpose of preventing expensive jurisdictional manoeuvring and respecting the court first seised.

5. Even while the identity of the court first seised was disputed, there was a strong presumption, absent a clear irregularity, that the court first approached was first seised. Article 12 did not make relief available in both jurisdictions pending exhaustion of an appeal. The husband was relieved of further payments and entitled to repayment of, or credit for, the payment already made.

• Court of Appeal (Civil Division): Allowed the husband’s appeal and discharged the maintenance-pending-suit order: [2003] EWCA Civ 50.
• High Court of Justice, Family Division (Johnson J): Held that Article 12 of Council Regulation (EC) No 1347/2000 permitted maintenance pending suit, and ordered the husband to pay £150,000 a year. No citation for that order is stated in the judgment.