EUPillar Anne Clotilde Marie – Pierre De La Ville De Bauge v Alessandro China [2014] EWHC 3975 (Fam)

Summary

There were parallel divorce proceedings. The parties to the proceedings were an Italian husband, residing in Italy, and a French wife, residing in England. The parties had three children who all were in their teens. They were married in Italy in 1995. The proceedings for personal separation between the parties were first initiated by the husband in Italy on 14th October 2008. On 19th December 2008, the wife filed a divorce petition in England. The wife also challenged the jurisdiction of the Italian court. The English court stayed the English proceedings. The Italian court dismissed the wife’s jurisdictional challenge. A final separation order was made by the Italian court on 9th November 2012. On 28th May 2013, the wife filed a second divorce petition in England. The husband served the Italian separation order onto the wife on 8th July 2013; the order became final on 22nd September 2013. A divorce petition was filed by the husband in Italy on 23rd September 2013. The English court had to consider the effect of the Italian separation/divorce proceedings on the English divorce proceedings. It was held that the Italian courts were first seised, and the English court declined to exercise jurisdiction in respect of the wife’s fresh divorce petition. Mr Cusworth QC, sitting as a Deputy High Court Judge, held: “17 […]I am satisfied that the seisin of the Italian court, established definitively in 2010 when the wife's jurisdictional appeal failed, has not been lost along the way. Particularly, I am satisfied that it was not open to the wife, prior to the expiration of the appeal period – which she herself could have reduced – to issue a fresh petition in England, regardless of whether or not she required the permission of this court given that her first petition remained stayed. 18 In those circumstances it is not necessary for me to examine further whether the 2 petitions issued by the wife can continue to sit side by side – as I find that this court's jurisdiction must be declined in relation to each of them. Further, the third question that I was asked, as to whether I can re-examine the factual assertions underlying the Italian jurisdiction judgement in order to determine whether or not the wife can establish jurisdiction for either of her petitions also falls away, although I have to say that I would have agreed with the submission made by Mrs Bailey Harris for the husband that: ‘Arts 24 and 26 of Brussels IIR expressly prohibit review of the jurisdictional basis or substance of a judgment. W simply cannot ask this Court to call into question the Italian Courts' findings on Italian jurisdiction. Such a course would fundamentally undermine the whole Brussels IIR regime. ’ [17-18]