Referring court and Member State
England and Wales, First Instance, High Court of Justice
Summary
The case concerned a French couple who were married in France after entering into a marriage contract under the French regime of separate property. They moved to the UK and had three children together but the couple separated and the husband petitioned for judicial separation in France. Two months later, the wife petitioned for divorce in England. The English court declined jurisdiction on the basis of Art 19 because the French court was already seised. The French court made a non-conciliation order which would expire at midnight on 16 June 2014. On 13 June 2014, the wife issued another divorce petition in England. Immediately following the expiration of the French order, at 8.20am local time on 17 June 2014, the husband issued a divorce petition in France. He also sought the dismissal of the wife's divorce petition in England on the ground that the jurisdiction of the French court had been established. The English court noted that the husband had taken no steps to progress the judicial separation proceedings in France and thus acted to prevent the wife from issuing divorce proceedings in the UK. This behaviour was contrary to the intention of the EU legislator. The English court referred questions to the CJEU on the interpretation of Art 19 of Brussels IIa. The Third Chamber noted that in order to determine when a court is first seised under Art 19, it is necessary to refer to Art 16. It is apparent from the wording of Art 19(1) that, contrary to the rules in Art 27(1) of Brussels I, in matrimonial matters applications brought before the courts of different Member States are not required to have the same cause of action. As AG Villalón noted (para 76), while the proceedings must involve the same parties, they may have a different cause of action, provided that they concern judicial separation, divorce or marriage annulment. The Court’s interpretation of Art 27 of Brussels I applies equally to Art 19(1) of Brussels IIa. Thus, in order for the jurisdiction of the court first seised to be established within the meaning of Art 19(1), it is sufficient that the court first seised has not declined jurisdiction of its own motion and that none of the parties has contested that jurisdiction before or up to the time at which a position is adopted which is regarded in national law as being the first defence on the substance submitted before that court. Where that jurisdiction is deemed to be established under the rules in Art 3 of Brussels IIa, the court second seised is to decline jurisdiction in favour of the court first seised, in accordance with Art 19(3). However, in order for there to be a situation of lis pendens, it is important that the proceedings brought between the same parties and relating to petitions for divorce, judicial separation or marriage annulment be pending simultaneously before the courts of different Member States. Where two sets of proceedings have been brought before the courts of different Member States, and one set of proceedings expires, the risk of irreconcilable decisions, and thereby the situation of lis pendens within the meaning of Art 19, disappears. It follows that, even if the jurisdiction of the court first seised was established during the first proceedings, the situation of lis pendens no longer exists and, therefore, that jurisdiction is not established. That is the case following the lapse of the proceedings before the court first seised. In that situation, the court second seised becomes the court first seised on the date of that lapse. The CJEU held that since the proceedings before the French court first seised lapsed the English court is the court first seised of the dispute. The conduct of the husband, notably his lack of diligence, and the existence of a time difference between the Member States concerned, which would enable the courts of the first Member State to be seised before those of the second Member State, in the particular circumstances of the present case, were not relevant.