Luca Manetta v Katia de Filppo

Under Council Regulation (EC) 2201/2003, the court second seised must stay proceedings of its own motion while the jurisdiction of the court first seised is established. Declining jurisdiction under Article 19(3) is a judicial step requiring an order. Proceedings are not automatically discontinued retrospectively when the first court’s jurisdiction is established. If no order declining jurisdiction is made before the first proceedings end, that obligation no longer arises. Where judicial separation proceedings are not converted into divorce proceedings under Article 5, a later divorce petition may become the only extant proceeding and therefore the first-seised proceeding.

The parties, Italian nationals living in England, separated in 2016. The wife issued an English divorce petition and financial remedies application after the husband had begun judicial separation proceedings in Turin. The English petition was stayed because the Italian court was first seised.

The Turin judicial separation proceedings concluded on 7 October 2019. The husband issued an Italian divorce petition on the same day. HH Judge Roberts found that Italian law did not provide for conversion of judicial separation proceedings into divorce proceedings. She therefore held that the English petition was the only extant divorce proceeding during the intervening period and lifted the stay.

The husband appealed on the issue whether the English petition should have been dismissed retrospectively under Article 19 of Council Regulation (EC) 2201/2003.

The Court of Appeal, in a judgment delivered by Baker LJ with Coulson and Moylan LJJ agreeing, dismissed the appeal.

1. Article 19. The words “of its own motion” in Article 19(1) apply to the initial stay. That stay follows automatically when another Member State court was first seised. The obligation under Article 19(3) to decline jurisdiction is different. It is a judicial obligation arising once the jurisdiction of the first-seised court has been demonstrated. The Regulation does not automatically discontinue proceedings in the second court by operation of law.
2. Effect of the English order. The scheme in rule 7.27 of the Family Procedure Rules 2010 requires a stay and a process for determining jurisdiction and further directions. The order of 27 July 2016 allowed the parties to apply to dismiss the petition or seek further directions. No formal application to dismiss was made before the Italian judicial separation proceedings ended. The proceedings therefore remained alive, and there was no basis for retrospective dismissal.
3. Authorities. A v B (C-489/14; [2016] 1 FLR 31) supported the conclusion that, when first-seised proceedings end, the remaining court may become first seised. Liberato v Grigorescu (C-386/17; [2019] 1 WLR 3677) was consistent with the conclusion that second-court jurisdiction is not extinguished automatically. Wermuth v Wermuth ([2003] EWCA Civ 50; [2003] 1 FLR 1029) concerned urgent protective measures under Article 20. The remaining authorities did not support retrospective dismissal and were distinguished or explained accordingly.
4. Application. The Court proceeded on Judge Roberts’s unchallenged finding that Italian law did not convert judicial separation into divorce under Article 5. There was consequently a short period in which the English petition was the only extant divorce proceeding. The English court was first seised and the stay was properly lifted. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the husband’s appeal against the order lifting the stay.
• High Court, Family Division: Peel J granted permission to appeal on one ground and transferred the appeal to the Court of Appeal under rule 30.13 of the Family Procedure Rules 2010.
• Central Family Court: HH Judge Roberts lifted the stay on the wife’s divorce petition in December 2020.