E v E (Article 19 and Seiesing BIIa)

Under art 19 of Council Regulation (EC) No. 2201/2003 (Brussels IIa), where divorce proceedings between the same parties are pending in different Member States and the jurisdiction of the court first seised has been established, the court second seised must decline jurisdiction.

Declining jurisdiction ordinarily requires dismissal of the later petition. A stay is appropriate while the jurisdiction of the court first seised remains unresolved, but it should not preserve the later proceedings after that jurisdiction has been established. The rules on seising under art 16 are distinct from the lis pendens rules in art 19. Tactical second proceedings should be discouraged.

The husband commenced divorce proceedings in France in 2011. The French court determined in 2012 that it had jurisdiction. The husband later filed an assignation en divorce within the period allowed by the French court. The wife subsequently issued a divorce petition in England.

The English proceedings were stayed and listed to determine jurisdiction. The wife accepted that the French proceedings had been instituted in 2011, but argued that the effect of A v B case C-489/14 was that the English petition should remain capable of revival if the French proceedings ended without a substantive determination. The husband sought dismissal under art 19. A subsidiary issue concerned service of the French petition in England.

1. Article 19. The French proceedings were instituted when the husband issued his requête in 2011. The French court was the court first seised and its jurisdiction had been established. The English court was therefore the court second seised and was required by art 19(3) to decline jurisdiction.
2. Effect of A v B case C-489/14. That decision concerned the separate questions of when a court is seised and whether lis pendens continues after the first proceedings expire. It did not alter the meaning of decline in art 19 or require the later petition to remain alive. Dismissing a petition constitutes declining jurisdiction. The distinction between staying and declining was also supported by Re G (Jurisdiction: Art 19 BIIR) [2015] 1 FLR 276.
3. The proposed order would in substance be a stay, because the English petition would remain in existence. Once the first court’s jurisdiction had been established, the appropriate order was dismissal. The court should discourage tactical filing of second proceedings. The approach was consistent with the objectives identified in Wermuth v Wermuth No. 2 [2003] 1 FLR 1029, including simplified jurisdictional rules and avoidance of expensive, superfluous litigation.
4. Service. The court declined to determine generally whether the CPR or FPR governed service of foreign process under Brussels IIa. The wife had plainly received notice of the French proceedings through her lawyers and had responded in France. Following Abela v Baadarani [2013] UKSC 44, the purpose of service was to communicate the proceedings, not to permit technical games. If necessary, the court could validate alternative service under CPR 6.15 or the relevant FPR provisions.
5. The English divorce petition was dismissed. No final order validating service was made at that stage.