S v S (Brussels II revised: Articles 19(1) and (3): reference to CJEU)

For the purposes of Article 19 of Brussels II revised, the meaning of an established jurisdiction may require clarification where proceedings in the court first seised are left substantially dormant and expire without determination. A bare procedural commencement may not resolve whether jurisdiction remains established when inactivity creates an abusive stalemate and prevents proceedings in a second member state. The court should refer the question to the Court of Justice of the European Union where the regulation’s literal wording and existing authority do not address that situation. A reference requires an all-embracing stay of the English divorce proceedings and their ancillary claims.

The respondent husband applied under Family Procedure Rules 2010, rule 4.4, to strike out the wife’s English divorce petition. French judicial separation proceedings had been commenced first, but the husband took virtually no substantive steps. They expired under French law shortly after the wife issued her English petition. The husband argued that the French jurisdiction remained established under Article 19(3) of Brussels II revised, relying also on the dismissal of an earlier English petition. The wife argued that dormant proceedings could not retain exclusive jurisdiction. The central issue was whether jurisdiction is established where the first proceedings are not diligently progressed and expire undetermined.

1. The application to strike out was not summarily determined. The court held that the circumstances raised a substantial question about the construction of Articles 19(1) and (3) of Brussels II revised. The husband had made only a requête for judicial separation and had not filed the subsequent assignation needed to progress the proceedings. The proceedings then expired by effluxion of time.

2. The court considered that a purposive interpretation might require more than the initial filing of proceedings. It might require the applicant in the first court to progress them with due diligence and expedition. Otherwise, a litigant could create a legal filibuster by commencing proceedings and then taking no substantive steps, frustrating the regulation’s objectives of swift jurisdictional resolution and avoidance of irreconcilable judgments.

3. Cartier Parfum-Lunettes SAS & Anor v Siegler France SA & Ors [2014] 1 LPR 25, 359 did not resolve this materially different situation. It addressed when jurisdiction is established where the first court has not declined jurisdiction and its jurisdiction has not been challenged. It did not address dormant proceedings consisting only of a requête which expired without an assignation.

4. The court referred questions to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union and requested the expedited procedure. The wife’s English petition was stayed, including all ancillary claims. The parties were directed to seek a corresponding stay of the husband’s French divorce proceedings. Permission to appeal was refused.

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