Summary
The parties to the dispute were both English who were living in Spain for tax reasons.
They separated, and they obtained a divorce in Spain.
The proceedings before the English court were in respect of the financial consequences of the divorce.
This was a jurisdictional battle. The central question was whether the matter was to be determined in Spain or England.
The English proceedings were initiated by the wife on 24th May 2006. The husband challenged the English court’s jurisdiction, relying on Article 5(2) as well as on Articles 27 and 28 of Brussels I. The husband’s jurisdictional challenge was dismissed.
On 1st February 2007, the English High court held that the proceedings were not a maintenance within the meaning of Article 5(2) of Brussels I. As a result, Articles 27 and 28 could not be invoked. The Court of Appeal affirmed the judgment of Mr Justice McFarlane holding that:
“86 The effect of the decisions of the European Court in Case 143/78 De Cavel v De Cavel (No.1), Case 120/79 De Cavel v De Cavel (No.2) , and Van den Boogaard v Laumen is that whether the application is to be regarded as a matter relating to maintenance depends not on Spanish law, nor on English law, but on the autonomous concept to be derived from those decisions. But in determining whether the application relates to maintenance it is necessary to consider the terms of the application in so far as it sheds light on the purpose of the application.
87 On that basis, in our judgment it is plainly not related to maintenance, but is, as the judge rightly said, an application by the husband for the division of the wealth or assets to which this couple have a claim.” [86 and 87]
In this context, the Lord Justices made the following observations:
“6 An extraordinary feature of the present case is the parties have spent about £1.5 million in legal fees, most of it in proceedings concerning the question whether the financial consequences of the divorce should be determined in Spain (as the husband contends) or in England (as the wife contends). Yet (as Mr Lewis Marks Q.C., counsel for the wife, emphasises) it is common ground between the parties, their Spanish lawyers and their eminent Spanish experts that, if the Spanish court were to take jurisdiction to determine these issues, it would apply English law. We do not know whether this lamentable and grotesque waste of family resources is the result of the intransigence of one or other of the parties or because the husband hopes, or has been advised, that the Spanish court, if seised, will misapply English law to his benefit. We asked Mr Barry Singleton Q.C., counsel for the husband, what advantage the husband might gain from litigating in Spain, but he was unable to give any positive answer.
7 […] Despite the enormous financial and human resources put into the present litigation, the English lawyers (as we point out below) were not able to give the court an up-to-date assessment of the likely progress in the foreign proceedings. We think that it is elementary that in cases involving overlapping proceedings in different jurisdictions there should be someone on each team who is co-ordinating the proceedings and understands what is going on, and is able to inform both courts of the progress in the other jurisdiction.” [6-7]
“27 [...] McFarlane J. condemned the wife's litigation strategy. In our judgment the husband is equally deserving of condemnation. It was when we asked for an account of the costs so far incurred on the litigation in both jurisdictions that the shocking figure of approximately £1.5 million, to which we have already referred, emerged for the total spent by the parties in the two jurisdictions.” [27]
The English court had jurisdiction under the English common law.