MB v TB

Under article 16 of Council Regulation (EC 2201/2003), English procedural law determines the steps required to effect service. Where FPR 7.8 imposes no time limit and requires no specific step beyond service itself, delay or procedurally ineffective attempts do not by themselves defeat seisin. The proviso is concerned with abuse of process, including issuing a petition solely to secure a favourable jurisdiction without a genuine intention to pursue divorce. Defects in service may also be waived where fairness requires it, particularly where the respondent had actual notice and suffered no injustice.

The wife issued an English divorce petition on 8 July 2016. The husband subsequently issued a German petition and challenged the English court’s jurisdiction, contending that the wife had abused the process by warehousing her petition and had failed to take the steps required for service under article 16.

The wife’s initial attempts at service in Germany were procedurally ineffective, but valid service was later effected through the Foreign Process Section in accordance with the Service Regulation. The central questions were whether the petition had been issued abusively and whether the wife had subsequently failed to take the steps required to effect service.

1. The petition was not an abuse of process. The wife had genuinely decided that the marriage was over and intended the petition to be served. The evidence did not establish that she had issued it merely to secure English jurisdiction while intending to leave it unused.
2. Under article 16 of Council Regulation (EC 2201/2003), the relevant steps are those required by the domestic law applicable to service. Following Thum v Thum [2018] EWCA Civ 624, English law governs the question. FPR 7.8 contains no stipulated time for service and no implied obligation to serve immediately, promptly or diligently in the abstract.
3. The wife’s initial attempts did not comply with the applicable service rules, but they did not amount to failure to take a required step because English procedural law imposed no specific step beyond service itself. Valid service was subsequently effected through the Foreign Process Section. The article 16 proviso therefore did not apply.
4. The judge further held, as an alternative, that it would have been fair to waive the defects in service. The husband had actual notice of the English petition, had received or accessed the documents, and had used that knowledge to issue German proceedings and seek service immediately. It would have been unjust to treat him as unserved in those circumstances.
5. The English court remained seised of the wife’s petition. The petition was to proceed in the English court.