Weiner v Weiner

For the purposes of Article 16 of Brussels II Revised, a court is seised when the document instituting proceedings is lodged, subject to the applicant’s subsequent failure to take the steps required to effect service. Actual service is not an additional precondition where the regulation does not impose one.

A breach of the rule restricting service of family process on Sundays is an irregularity, not an automatic nullity. The court may set aside the proceedings under the applicable procedural rule, but should consider the circumstances, including prejudice and prompt subsequent regular service.

The parties, Swedish nationals habitually resident in England, were entitled to commence divorce proceedings in both England and Sweden. The wife issued an English petition in January 2008 and later filed a supplemental petition in November 2009. Documents were served on the husband on Sundays. He issued Swedish divorce proceedings on 16 November 2009.

The central issues were whether Sunday service was prohibited, what legal effect any breach had, and whether the English or Swedish court was first seised under Articles 16 and 19 of Council Regulation (EC) No. 2201/2003.

1. Sunday service. County Court Rules 1981 O7r3 continued to apply to family proceedings through FPR 1991 rule 1.3. It prohibited service of process on a Sunday, except in a case of urgency with leave. The FPR provisions concerning service of a petition did not displace that rule. The prohibition therefore applied to the services on 27 January 2008 and 15 November 2009.
2. Effect of breach. The Sunday services were irregularities within County Court Rules 1981 O37r5(1). They were not nullities. All required documents had been served, the services were otherwise regular, there was no prejudice, and no timely application had been made to set them aside. The court declined to exercise its discretion to set aside either service. Retrospective leave was also refused because there had been no evidence of urgency when leave could have been sought.
3. Article 16. Article 16 does not require actual service, or prior steps towards service, before seisin arises. It provides that seisin occurs when the initiating document is lodged, subject to the later proviso that the applicant must not have failed to take the required steps to effect service. The question is therefore fact-sensitive and must be assessed retrospectively. Prompt and effective service, including the wholly regular service on 18 November 2009, meant that the proviso was not engaged.
4. Disposition. The Swedish court was deemed seised on 16 November 2009. The English court was nevertheless first seised, either on 17 January 2008 or, at the latest, on 12 November 2009. The court’s jurisdiction was established under Article 19.3. The stay was removed and the proceedings were re-transferred to the Principal Registry of the Family Division.

First-instance decision. No prior appellate decision is stated in the judgment.