Rogers-Headicar v Headicar

The existence of matrimonial jurisdiction under Article 2 of Council Regulation (EC) No 1347/2000 does not depend on the grounds pleaded in a divorce petition. The court has an independent duty to investigate and determine, of its own motion, whether jurisdiction exists under the Regulation.

Procedural rules requiring a petition to state its asserted jurisdictional grounds assist the efficient administration of divorce proceedings. They do not confer jurisdiction, remove it, or limit the court’s duty to give effect to the Regulation. A defective or speculative pleading may be exposed on determination of a preliminary issue and may have costs consequences, but it does not itself decide jurisdiction.

The parties married in 2001 and had a daughter. They later lived in Germany after the husband’s employment posting. In 2003 the wife returned to London with the child and presented a divorce petition in England and Wales.

Her petition relied on grounds asserting the parties’ or husband’s habitual residence in England and Wales. Following related Hague Convention proceedings, those grounds could not be established. When the husband challenged jurisdiction, the wife sought permission before Wilson J to substitute a ground that she was habitually resident in the jurisdiction. The judge allowed the amendment, subject to indemnity costs thrown away and a substantial payment on account.

The husband appealed, contending that the original pleading could not be amended because it failed to state a sustainable jurisdictional ground, and that the costs order was inadequate. The central issue was whether the pleaded form of the case constrained the court’s jurisdiction under the Regulation.

Decision

1. Permission to appeal was granted, but the appeal was dismissed. Thorpe LJ gave the principal judgment, with which Laws LJ and the President agreed.

2. Article 2 of Council Regulation (EC) No 1347/2000 governs jurisdiction in matrimonial proceedings. Its operation does not depend upon the way in which a petitioner has pleaded the case. A pleading neither confers jurisdiction on the court nor deprives it of jurisdiction.

3. The court has an independent responsibility to investigate and determine, of its own motion and in accordance with the Regulation, whether it has jurisdiction. It must perform that function even where the pleaded grounds are unsustainable or incomplete.

4. Rule 2.3 and Appendix 2 of the Family Proceedings Rules 1991 require the petition to state the grounds of jurisdiction. Those requirements remain useful for the efficient scrutiny and processing of divorce petitions. They do not regulate or limit the court’s essential duty to uphold the intention and effect of Article 2.

5. Wilson J had therefore reached the correct result in permitting the wife to amend her asserted jurisdictional basis. The husband’s separate challenge to the costs order was unarguable once the principal appeal failed. The appeal was dismissed, with costs summarily assessed at £7,000, subject to set-off.

• Court of Appeal (Civil Division): Permission to appeal was granted and the husband’s appeal was dismissed.
• High Court, Family Division (Wilson J): The judge permitted the wife to amend the jurisdictional ground in her divorce petition, ordered her to pay the husband’s costs thrown away on an indemnity basis, and directed a substantial payment on account.