Divorce and Jurisdiction disputes

In matrimonial matters, and particularly so in contentious divorces, divorce and jurisdiction disputes are common as one party might file a divorce petition in Spain and the other in the United Kingdom.

Brussels II Revised (BIIR)
Council Regulation EC number 2201 of 27 November 2003

Both the United Kingdom and Spain are signatories to the Council Regulation EC number 2201 of 27 November 2003, ordinarily known as Brussels II Revised (“BIIR”), and it is the terms of this Regulation which govern the question of jurisdiction where it arises as between member states.

Article 3(1), so far as it is relevant, provides:

“1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State: (a) in whose territory the spouses are habitually resident or the respondent is habitually resident or the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her domicile there .”

Article 19 and paras. (1) and (3) of that article are in these terms:

“1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.”

Article 16 , provides:

“1. The court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent.”

There are two requirements to “seise” a court in a Member state:

• Firstly, the document instituting the proceedings must be “lodged” with the court; and
• Secondly, the petitioner must take all steps required of him/her to serve those documents on the respondent. Those requirements will be governed by the local law of the member state in which they have issued the proceedings.

Where a court has the responsibility for service, the petitioner need only issue the petition and the second proviso would not arise. Holman J. held that view in Weiner v Weiner [2010] EWHC 1843 (Fam).

Whilst the above might sound relatively straightforward, this is generally not the case. The problem lies in different procedures between Spain and the UK as regards the lodging and serving of the divorce petition. The problem is further compounded by English District Judges in the Family Courts having a very poor understanding of EU law, refusing to enter into direct correspondence with the Spanish courts, and in wrongly believing that both an English Court and an English Judge is somehow superior to a Spanish Court and to a Spanish Judge.

Lodging and serving of a Spanish divorce petition

In Spanish proceedings, the first step is to lodge a petition instituting proceedings in court. The date/time of lodging is the moment the court is seised, providing the document is then served. The actual serving of the petition has no bearing on the date the court was seised.

Furthermore, in Spanish proceedings the petitioner does not independently notify the respondent that a petition has been filed and indeed it would be unusual to do so. The Spanish court follows its own procedure in admitting the petition and thereafter serving the petition. Spanish courts tend to be slow in admitting the petition and taking steps to serve the petition and it could take anything from 2 to 12 months before the divorce petition is served on the respondent.

Lodging and serving of an English divorce petition

In English proceedings, the first step is to lodge the divorce petition with the court. Once the court receives the petition it will then post a copy of the divorce petition to the Respondent together with a document called an “Acknowledgment of Service.” If the Respondent just ignores the papers, service has to be arranged in some other way.

Different procedures

This difference in procedure between Spanish and English courts results, in many cases, with the English divorce petition being first served but on examination it is found the Spanish court was first seised despite the fact that the Spanish divorce petition has yet to be served.

It is at this point in time English solicitors not familiar with Spanish Civil Procedure Rules challenge on jurisdiction in an attempt to have the English court claim jurisdiction and requesting the involvement of the English court in reviewing Spanish procedure.

An English Judge, lacking knowledge of EU law and Spanish procedure, entertains the request and orders a Directions Hearing. In many cases, at the Directions Hearing, the English Court incorrectly orders the serving of the Spanish sealed divorce petition, and at the same time an Expert Witness Report as to Spanish procedure.

This unnecessary court procedure can be expensive and it is usually necessary to engage Counsel. An obstacle to these proceedings is the refusal of the English Judge to accept that Spanish legal documents and Spanish legal procedure do not mirror those of the UK. We have encountered situations where the English Judge has incorrectly referred to English Civil Procedure Rules as regards the serving of the Spanish divorce petition.

An English Judge should not become involved in conducting a review of Spanish procedure and the mere statement of an issue does not compel the English Court to determine it. Chorley v Chorley [2005] EWCA Civ 68, [2005] 2 FLR 38, CA. Only a Spanish court should conduct a review of Spanish procedure.

Authorities

Chorley v Chorley [2005] EWCA Civ 68, [2005] 2 FLR 38, CA
Where proceedings have been issued in a member State and there is an issue as to whether that constitutes bringing proceedings before a court for the purposes of Article 19, the case of Chorley v Chorley , is (Court of Appeal) authority for the proposition that the proper forum to decide that issue is that of the first jurisdiction.

The Chorley case was decided under the provisions of Article 11 of the Regulation Brussels II (Council Regulation (EC) No 1347/2000) which was replaced and repealed in its entirety by BIIR.

There are good reasons for deferring to the foreign court in such a case: it is in keeping with the principles of comity which underwrite BIIR; it is far simpler and quicker for the local court to decide matters of law in its own Member State; it avoids the need for expert evidence and it saves costs.

The Court of Appeal [Lord Justice Thorpe], approved the view, included in the trial judge’s judgment, that the foreign court was better placed to hear the dispute as to foreign law. Indeed, Thorpe LJ expressly approved the following advantages identified in the trial judge’s judgment:-

(1) it seems to be both daunting and unhappy that an English judge should determine such issues of Foreign law and procedure, and

(2) it may be more convenient, and would almost always be wholly desirable, for a Member State to determine issues of interpretation of its own law and procedure. Crucially, the mere statement of an issue to be determined did not compel the English Court to determine it.

Weiner v Weiner [2010] EWHC 1843 (Fam)
Where in a member state it is the court which serves (by post) the documents and that all that is required of the petitioner is to give a valid address for service, which he does, so there is no subsequent failure by him to take any step that he was required to take to have service effected on the respondent, and the proviso simply does not operate at all

Summary

This article has been prepared primarily for the purpose of assisting English solicitors involved in Spanish/English divorces and particularly so should there be a dispute as regards jurisdiction arising from the lodging and serving of the Spanish divorce petition.

Article published August 2015

Paloma España
Solicitor of the Supreme Court of England & Wales
Spanish Abogado/Lawyer (Colegio de Abogados de Malaga)

Paloma España holds a Master’s certificate form the Universidad Internancional de Andalucia in Family and Succession law and regularly advises on international matters such as divorces, child abduction, special guardianship orders, etc.

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