The parties who were Italian nationals were married in Turin in July 2006 and lived in England. In 2016 the parties separated and the husband moved back to Turin while the wife and child moved out of the family home into alternative accommodation in London. On 23 March 2016, the husband issued a judicial separation petition in Turin. On 19 May 2016, the wife filed a divorce petition in the Central Family Court in London, together with an application for a financial remedies order. In July 2016 a stay was imposed on the divorce petition because at that point there were judicial separation proceedings ongoing in a court in Turin so that the Italian court was “first seised” of matrimonial proceedings. The English petition was, however, never dismissed with the result that, when the judicial separation proceedings came to an end and before divorce proceedings were started in Italy, the English court became first seised. In 2020 the judge lifted the stay. The question arose as to whether the judge had erred in not dismissing the petition “retrospectively”. The Court of Appeal proceeded on the basis of the judge’s uncontested finding that under Italian law there was no conversion of a judicial separation order into a divorce within the meaning of article 5 of Council Regulation (EC) 2201/2003(“Brussels IIa”), so that there was a period of time, albeit very short, when there were no proceedings extant in Italy.
On the husband’s appeal—
Held, appeal dismissed. Article 19 of Brussels IIa, headed “Lis pendens and dependent actions” provided: “(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 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. In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.” There was a distinction between article 19(1) and (3) of Brussels IIa and the obligation on the court second seised to take action “of its own motion” only applied to the requirement to stay the proceedings. That was akin to an administrative action which flowed automatically from the fact that the foreign court was seised first in accordance with article 16. The requirement on the court second seised to decline jurisdiction, on the other hand, was a judicial obligation that arose once it was demonstrated that the jurisdiction of the court first seised was established. The words “of its own motion” appeared in article 19(1) but not in article 19(3). The Regulation did not provide for the proceedings in the court second seised to be automatically discontinued by operation of law. They were only discontinued when the court so ordered. If no order was made, there was no discontinuance. If the court second seised did not in fact decline jurisdiction before the proceedings in the court first seised came to an end, the obligation to decline jurisdiction under article 19(3) no longer arose. There was no obligation on the court second seised to treat the proceedings as having been dismissed retrospectively from the moment the jurisdiction of the court first seised was established. That interpretation was reflected in the terms of FPR r 7.27 by which the provisions in Brussels IIA were implemented in our jurisdiction. The rule provided that the court had to, (1) under paragraph (3)(a), stay the proceedings without a hearing where it appeared that under articles 16 to 19 it did not have jurisdiction and, (2) under paragraph (3)(b), had to fix a hearing to determine the questions of jurisdiction unless, (3) under paragraph (5), all parties agreed that any such question could be dealt with without a hearing and (4) had to in any event, under paragraph (3), give reasons for its decision. The stay order of 27 July 2016 was consistent with that interpretation of the Regulation and the scheme in rule 7.27. The terms of that order were decisive in the case. There, the court ordered, by consent, (1) that the order would be stayed until the jurisdiction of the Italian court was determined and thereafter (2) the parties would apply to the court to lift the stay and, depending on whether it had been established that the Italian court had jurisdiction, either (a) dismiss the petition or (b) give further directions in the proceedings. No formal application was made in the present case to discontinue the proceedings or dismiss the petition before the Italian judicial separation proceedings came to an end. The Court of Appeal had proceeded on the basis of the judge’s finding, which was not the subject of the present appeal, that under Italian law there was no conversion of a judicial separation order into a divorce within the meaning of article 5, so that there was a period of time, albeit very short, when there were no proceedings extant in Italy. Having found that the Italian judicial separation proceedings were not converted into divorce proceedings, the judge was right to conclude that, between the making of the judicial separation order on 7 October 2019 and the lodging of the husband’s application for divorce in Italy on the same day, the wife’s English proceedings were the only extant proceedings, that the English court was therefore first seised of the divorce proceedings and that the stay on the wife’s petition should be lifted (paras 41–44, 57, 58, 59, 60).
Decision of Judge Lynn Roberts in the Central Family Court affirmed.
Tim Amos QC and Grant Lazarus (instructed by MSB Solicitors, Liverpool) for the husband.
Stuart McGhee (instructed by Direct Public Access) for the wife.