Summary
This was a long lasting jurisdictional battle. The English proceedings were between a husband and wife who were both French nationals.
The parties were married in France in 1997 before moving to England in 2000. The matrimonial home appeared to be in London.
In June 2010, the parties separated.
On 30th March 2011, the husband issued judicial separation proceeding in France. Following a conciliation hearing in November 2011, the case progressed onto adversarial mode on 15th December 2011, when the French court issued a declaration that it had jurisdiction under Brussels IIa. That said, it should be noted that “the law in France stipulates that after 30 months a judicial separation suit which has not been disposed of will lapse. The date and time for such lapsing was midnight on Monday 16th June 2014.” [13]
Since the husband remained passive till 8:20 am on 17th June 2014, the wife issued divorce proceedings on 13th June 2014 in England.
The husband challenged the English court’s jurisdiction, relying on Article 19 of Brussels IIa. He argued that, on 13th June 2014, when the wife issued the divorce proceeding in England, the jurisdiction of the French court had been established. This posed the question whether the English court was first (or second) seised within the meaning of Brussels IIa.
A reference was made to the CJEU to clarify the meaning of “established” for the purposes of Article 19 of Brussels IIa. In this context, Mr Justice Mostyn held:
“17 This is a sorry tale of manoeuvring in the face of the seemingly inflexible jurisdiction rules in relation to divorces which are contained in Brussels II Revised. It is a remarkable and regrettable fact that Brussels II Revised contains within Article 15 a procedure which allows a court which has jurisdiction to transfer the case in question to another court within the European Union if it is better placed to hear it, but that power is available only in relation to children's cases. There is no comparable provision within Brussels II Revised which allows a court to transfer a divorce to the courts of another member state on the basis that the courts of that latter member state would be best placed to hear the case. […] one can see that in relation to divorce cases the anomalous situation arises that there are no powers […] to achieve a transfer to a court which is better placed to hear the case or otherwise is a more convenient forum. It is in the face of this iron inflexibility that the parties in divorce cases engage in such extensive, expensive and futile manoeuvres as have been demonstrated in this case.” [17]
On 6th October 2015, the CJEU held that the English court was first seised, holding that:
“40. A petition for judicial separation had already been filed with the family court of the tribunal de grande instance de Nanterre when the United Kingdom court was seised, on 13 June 2014, of divorce proceedings, giving rise to a situation of lis pendens until midnight on 16 June 2014. Once that date had passed, that is to say, at 00.00 on 17 June, since the proceedings before the French court first seised had lapsed as a result of the expiry of the provisions of the nonconciliation order made by that court, only the United Kingdom court seised on 13 June 2014 remained seised of a dispute falling within one of the areas referred to in Article 19(1) of Regulation No 2201/2003. The commencement on 17 June 2014 of divorce proceedings before a French court was subsequent to the commencement of the proceedings brought before that United Kingdom court. Taking into account the chronological rules laid down by that regulation, it must be held that the effect of that sequence of events is that, subject to its being lawfully seised under the rules in Article 16 of Regulation No 2201/2003, the United Kingdom court became the court first seised.“ Case C-489/14 A v B EU:C:2015:654 [40].