Thum v Thum

Under Article 16 of Brussels II revised, a court is seised when the document instituting proceedings is lodged, subject to the applicant subsequently failing to take the steps required by domestic law to effect service. The test is objective. It does not require an enquiry into subjective delay or whether service was effected as quickly as possible. Family procedure rules impose no fixed period for serving a divorce petition, although a petitioner should act reasonably promptly. A minor technical error in attempting service will not defeat seisin unless it amounts to a failure to take the required steps. A petition deliberately left dormant may nevertheless be struck out as an abuse of process or for disclosing no reasonable grounds.

The wife issued an English divorce petition on 26 October 2015. She took steps to arrange service on 19 January 2016 and personally served the husband on 27 February 2016. The husband issued divorce proceedings in Germany on 19 January 2016 and applied for the English petition to be dismissed or stayed, arguing that the wife had delayed service and had failed to take the steps required by Article 16 of Brussels II revised.

The central issue was whether the English court had been seised on issue and had remained first seised despite the delay and an incorrect address initially being supplied for service.

1. The application to dismiss or stay the English petition was dismissed. The English court had been seised on 26 October 2015 and remained first seised.

2. Article 16 creates actual seisin on lodgement, subject to a condition defeasant. Seisin is lost only if the applicant subsequently fails to take the steps required by the domestic law of the country in which the proceedings were issued to have service effected. The court endorsed the analysis in Weiner v Weiner [2010] EWHC 1843 (Fam) and Re I (A Child) [2009] UKSC 10.

3. The relevant enquiry is not whether the applicant acted with subjective speed or whether service was effected forthwith. The civil rules provide prescribed and extendable service periods, but FPR 7.8 contains no equivalent time limit for a divorce petition. The court therefore inferred only a requirement of reasonable promptitude, informed broadly by the time limits in CPR 7.5. The reasoning in UBS AG, London Branch v Kommunale Wasserwerke Leipzig GmbH [2010] EWHC 2566 (Comm) was applied.

4. The initial address error did not demonstrate a failure to take the required steps. The wife subsequently achieved service within four months and one day of issue and had acted with reasonable promptitude. The technical approach in Benatti v WPP Holdings Italy SRL [2007] EWCA Civ 263 supported that conclusion.

5. The court distinguished the criticism in R v R (Divorce: Stay Of Proceedings) [1994] 2 FLR 1036 of keeping a petition secret. Although a petition deliberately left dormant may be abusive or disclose no reasonable grounds, the rules did not permit the court to insert a requirement that service be effected forthwith or as soon as practicable.

6. As the English court was first seised, the German court was required under Article 19(3) of Brussels II revised to decline jurisdiction.