Jefferson v O'Connor

Where parallel divorce proceedings are brought in Member States participating in the Council Regulation (EC) No 2201/2003, the first court seised has priority once its jurisdiction is established. The second court must decline jurisdiction, and the parties cannot use an estoppel or jurisdiction agreement to defeat that result. The stay powers in the Domicile and Matrimonial Proceedings Act 1973, including any inherent power preserved by section 5(6)(b), remain subject to article 19. Parties may still give effect to an agreed forum by bringing only one proceeding, or by withdrawing the proceeding they do not wish to pursue. A stay or dismissal founded on an agreement that the first proceedings had been abandoned is therefore impermissible.

The wife issued English divorce proceedings in March 2010 after the parties separated. The husband later commenced Spanish divorce proceedings. The parties had signed an agreement under which the wife undertook to show that she had abandoned the English proceedings and submitted their divorce to Spain.

HH Judge Booth, sitting as a Deputy Judge of the Family Division of the High Court, held that the wife was estopped from asserting that the English proceedings remained extant and stayed, then dismissed, the petition. The appeal concerned whether an agreement or estoppel could displace the first-seised court’s priority under articles 16 and 19 of the Council Regulation (EC) No 2201/2003. The court also considered the husband’s challenge to the extension of time for appealing.

Lord Justice Vos delivered the only reasoned judgment. Lord Justices McFarlane and Rimer agreed. The appeal was allowed.

1. The court refused to set aside the extension of time granted for the appeal. Although the extension was unusually long, there were real prospects of success on the jurisdiction issue. The delay was explained by the late instruction of the wife’s legal representatives. The court also relied by analogy on B v R [2009] EWHC 2026 (Fam), where a longer extension had been granted in circumstances involving a jurisdictional nullity.
2. Section 5 and Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973 are subject to the Council Regulation (EC) No 2201/2003 where parallel divorce proceedings fall within article 19. The domestic express stay power in paragraph 9 of Schedule 1 does not apply. Any inherent power to stay preserved by section 5(6)(b), including the power referred to in section 49(2) of the Senior Courts Act 1981, is also subject to article 19. The court left open the availability of stays for abuse of process or temporary case-management purposes.
3. Articles 16 and 19 establish a prescriptive first-seised scheme. The first divorce proceedings in time take precedence once the first court’s jurisdiction is established. The second court must then decline jurisdiction. Wermuth v Wermuth (No 2) [2003] 1 FLR 1029 explained the policy underlying that scheme.
4. An estoppel or jurisdiction agreement cannot be used to defeat article 19. The Regulation contains express agreement provisions for connected parental-responsibility matters, but no equivalent mechanism permitting the priority of first-seised divorce proceedings to be overridden. The parties may nevertheless achieve an agreed forum by commencing only one proceeding or by withdrawing or discontinuing the proceeding they do not wish to pursue.
5. The wife had never withdrawn the English petition. The agreement therefore did not remove the English proceedings from existence, and the judge was wrong to stay or dismiss them. The English divorce petition was reinstated.

• Court of Appeal (Civil Division) — The appeal was allowed and the English divorce petition reinstated: [2014] EWCA Civ 38.
• Family Division of the High Court — On 2 April 2012, HH Judge Booth held that the wife was estopped from asserting that the English divorce proceedings remained extant and stayed, then dismissed, the proceedings.