Ville de Bauge & Anor v China

Under Article 19 of Council Regulation (EC) No 2201/2003, proceedings for legal separation and divorce may constitute a true lis pendens where the separation proceedings are an essential precursor to divorce in the first Member State. Before the first-seised court confirms jurisdiction, the second-seised court should stay its proceedings. Once that jurisdiction is established, the second-seised court must decline jurisdiction absolutely; the proceedings are not merely deferred. The first-seised court’s seisin is not lost while a separation order remains subject to appeal and the parties are consequently precluded from issuing divorce proceedings. A court should not review the jurisdictional basis or substance of a judgment of the court first seised.

The parties, who had married in Italy, separated in 2008. The husband commenced Italian legal-separation proceedings, while the wife issued a divorce petition in England which was stayed. The Italian court’s jurisdiction was upheld on appeal, and a final separation order was made. The wife subsequently issued a second English divorce petition before the Italian appeal period had expired and before divorce proceedings could be commenced in Italy.

The court considered the effect of Article 19 of Council Regulation (EC) No 2201/2003, including whether Italian separation and English divorce proceedings were dependent actions, whether the English proceedings should remain stayed or be dismissed once Italian jurisdiction had been established, and whether the wife could challenge the Italian jurisdictional findings.

1. Article 19 and lis pendens. The court rejected the submission that Article 19 did not create exclusive priority for the court first seised where the proceedings concerned legal separation and divorce. The provisions in the revised Regulation had replaced the earlier two-clause structure considered in the Borras report with a unitary provision. Italian separation proceedings were also an essential precursor to divorce in Italy. They therefore constituted a true lis pendens with the subsequent English divorce proceedings.
2. Stay followed by mandatory declinature. Before the first-seised court had confirmed its jurisdiction, the second-seised court could stay its proceedings. Once jurisdiction had been established, however, Article 19(3) required the second-seised court to decline jurisdiction. Declining jurisdiction and deferring jurisdiction were distinct concepts. The obligation to decline was absolute and did not leave the second court’s jurisdiction indefinitely in suspense. The two-stage approach explained in Re G (A Child) and [2014] EWCA Civ 680 was applied.
3. Continuing seisin. The Italian court remained seised while the separation order was potentially subject to appeal and neither party could issue substantive divorce proceedings. The proceedings could properly be described as existing. The wife could not issue a fresh English petition during that period. Her first petition should have been dismissed once the Italian jurisdictional appeal failed, and both English petitions were dismissed.
4. Jurisdictional review. Although the issue no longer required determination, the judge indicated that Articles 24 and 26 prohibited the English court from reviewing the Italian court’s jurisdictional findings or the substance of its judgment.
5. The husband was released from his undertaking not to take further steps in the Italian divorce proceedings once the appeal period relating to the order made in England had expired.