Thum v Thum

In this judgment I shall refer to the petitioner as the wife and to the respondent as the husband.

In Chai v Peng [2014] EWHC 1519 (Fam) at para 37 Holman J referred to a colourful metaphor deployed by leading counsel for the husband in that case:

"To file [a divorce petition] prematurely is the equivalent of laying one's towel at dawn upon the sun lounger of the English court and returning at high noon to bask in the warmth of the law of England and Wales on divorce and financial remedies."

In that case the petition had been issued on 14 February 2013 but it was not until May 2014 that she actually sought to use it (as Holman J put it).

The practice of issuing a petition but not serving it and keeping it secret was condemned in strong terms by Ewbank J in R v R(Divorce: Stay Of Proceedings) [1994] 2 FLR 1036. There the wife had filed a petition on 22 April 1993 but did not reveal and serve it until after the husband had filed a petition in Sweden on 9 June 1993. Ewbank J stated at 1038:

"I have to say that a divorce petition does not stand in the same position as a writ in a civil action; a divorce petition is dealing with the status of parties and is subject to the rules set out in the Matrimonial Causes Rules 1977; it ought not to state that a marriage has broken down irretrievably if that is not the instructions of the client; and it ought to be served as soon as practicable after filing. It is not appropriate in the Family Division for petitions to be filed and held in secret and not served until it suits the petitioner."

As it happens, the wife's actions in that case did not affect the result. The husband's application for a stay was refused.

In this case the wife issued her petition on 26 October 2015 but took no steps to serve it until 19 January 2016. Perfect service on the husband was not achieved until 27 February 2016, four months and one day after the issue of the petition, when the husband was given the papers at Heathrow airport.

The husband says that the wife is guilty of the bad practice referred to by Holman J and Ewbank J.

Why does this matter? Before the advent of the original Brussels II Regulation (No. 1347/2000) the chronological sequence of competing petitions was of no great relevance in determining which was the most convenient forum in which the case should be heard. However, with the advent of Brussels II, incorporating the first past the post rule for determining jurisdiction, the question of the status of an unserved petition might be of critical importance.

The jurisdictional rules of Brussels II were modelled on those in the original Brussels I Regulation on civil and commercial matters (No 44/ 2001). That in turn replaced the Brussels Convention of 1968. In that Convention the rule in Article 21 was merely that "where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion decline jurisdiction in favour of that court." The CJEU had held that a court will be the one "first seised" when it "is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned": see Zelger v. Salinitri [1984] ECR 2397 at 2408. Thus in Dresser U.K. Ltd. v. Falcongate Freight Management Ltd. [1992] QB 502 the Court of Appeal held that the English Court would not be definitely seised until the writ was served. All this was examined in Tavoulareas v Tsavliris [2004] EWCA Civ 48, where it was held on the facts that English proceedings had priority over Greek proceedings in a case governed by the 1968 Convention. All this is most interesting but is irrelevant to the matter which I have to decide as this is governed by Art 16 of Brussels II revised (No 2201/2003) which is in the same terms as Art 32 of the recast Brussel I Regulation (No 1215/2012) which in turn is in the same terms as Article 30 of the original Brussels I Regulation (No 44/2001). In Tavoulareas v Tsavliris Mance LJ acknowledged that Art 30 of Brussels I "would provide a simpler answer to the present issue".

Art 16 of Brussels II revised provides, so far as is material to this case:

"1.

A 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; …"

This seemingly simple language has been the subject of some analysis in the family field.

In Weiner v Weiner [2010] EWHC 1843 (Fam) reported sub nom W v W [2011] 1 FLR 372, at para 47 Holman J held:

"The Article does not say that a court is seised when the document has been lodged and the applicant has effected (or taken a required step to effect) service. It says that the court is seised when the document is lodged, subject to the proviso (which may only be assessed from some later perspective of hindsight) that there has not been a subsequent failure to take the required steps."

This mirrors the remarks of Lord Clarke in Re I(A Child) [2009] UKSC 10 [2010] 1 AC 319 at para 87:

"As I see it, as stated above, the way article 16 works is that there is seisin on the date identified subject to a condition defeasant. That is not a case of apparent seisin maturing into actual seisin but there being actual seisin, which would take priority over any subsequent seisin, unless there was no service or lodgement."

If I may say so, these observations are to state the obvious, and no alternative grammatical construction of Art 16 can suggest otherwise. Thus there is actual seisin on issue but that seisin can be defeated if it is later shown that the applicant failed to take the steps she was required to take to have service effected on the respondent. And the required steps are those prescribed by the domestic law of the country in which the application was issued (in contrast, it seems, to the position under the Brussels Convention 1968 – see Tavoulareas v Tsavliris at para 31 per Mance LJ and at para 45 per Thorpe LJ).

Therefore, as Mr Pocock QC accepts, on 26 October 2015 this court became seised of the divorce proceedings when the petition was issued. It would only become "unseised" if it could be shown that subsequently the wife did not take the steps that were required of her to have service effected on the husband.

Before I look at the rules applicable to family proceedings I examine briefly the position in the civil sphere (conscious of Ewbank J's observation that a divorce petition is not in the same position as a writ). By CPR 7.5 a claim form must be served within the jurisdiction within four months of issue and out of the jurisdiction within six months, but these time limits can be extended under CPR 7.6. Where on any view the time limit has not been breached complaints about not taking required steps simply will not wash, and neither will the court go into the reasons for a delay in serving proceedings before the limit has expired: see UBS AG, London Branch & Anor v Kommunale Wasserwerke Leipzig GmbH [2010] EWHC 2566 (Comm) at para 70 where Gloster J stated:

"In the present case the relevant requirement is to be found in CPR 7.5. That provides that a claim form which is to be served within the jurisdiction must be served within four months of the date of issue; and one which is to be served outside the jurisdiction must be served within six months of the date of issue. There is no additional requirement upon the claimant to serve "forthwith" or "as soon as practicable". Nor is there any obligation upon a claimant to choose the quickest method of service, for example personal service rather than service by contractually-agreed method. Under CPR 7.6, a claimant who seeks to extend the time for compliance with CPR 7.5, must explain how he has taken all reasonable steps to comply with rule 7.5 (i.e. served within the requisite four- or six-month period), not how he has acted with all reasonable speed since issue of the claim form."

And at para 73:

"However, in any event, it does not seem to me that my conclusion as to the reasonableness of UBS' behaviour is of any relevance. It cannot be appropriate that, under Article 30, the relevant court has to conduct an enquiry as to whether, applying some wholly uncertain subjective criteria, it regards the issuing party as having inappropriately delayed the service of process. That would introduce the very uncertainty that Article 30 was apparently designed to avoid. The only criterion has to be that the issuing party has subsequently 'failed to take the steps he was required to take to have service effected on the defendant'."

In this regard I cite further the helpful Commentary in Dicey Morris and Collins on The Conflict of Laws (15^th Edition) at 12-067:

"According to the Brussels I Regulation, the date on which a court in a Member State is to be regarded as seised of proceedings for the purposes of Arts 27-29 of the Regulation is as set out in Art.30. According to that provision, a court is deemed to be seised either when the document instituting the proceedings is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or if the document has to be served before being lodged with the court, it is seised at the time the document is received by the authority responsible for service, provided that the claimant has not failed to take the steps required to have the document lodged with the court. As a result of this clarification, an English court will be seised on issue, rather than on service, always assuming that the defendant did not fail to take the steps necessary to effect service. In this context, it is reasonable to expect that where the court is seised on issue, provided that there is no failure to take the steps to have it made, service is likely to mean substantial, as distinct from technically perfect, compliance with the rules governing service of the document in question. To put the point another way, the claimant will have “failed” to take the steps required to have service effected only where that failure is blameworthy. So a technical failure, such as the failure to include a translation of the writ with the documents served, may not be counted as a failure, but a failure to pay a court fee, with the consequence that the document in question may not, and will not, be served at all, will be seen as a substantial failure on the part of the party who should have paid, with the further result that the earlier date of potential seisin is lost, and the court is not seised until the date on which the fee is paid. It is important to remember, though, that, where there is no failure to arrange for service, the date of seisin is, in England, the date of issue, and not the date on which the steps necessary to arrange for service were fulfilled."

In the footnotes the case that is cited about a blameless failure to include a translation of the claim is Benatti v WPP Holdings Italy SRL & Ors [2007] EWCA Civ 263 [2007] 1 WLR 2316. There Sir Anthony Clarke MR explained at para 31 that WPP 2005 Limited's case was that the writ lodged with the relevant Italian body with a request for service on 1 February 2006 was never validly served on it both because the letter purporting to serve it was addressed to a different entity (WPP Group plc) and also because the addressee was entitled to refuse to accept it without a translation. The time for refusal was unspecified and it was submitted that it therefore remained open to the defendant (unless there had been a prior positive act of acceptance) to intimate its refusal as long as it remained open to it to contest the court's jurisdiction under CPR 11. These technical nit-picking arguments were dismissed; Mr Benatti was not blameworthy and the errors were excused (see paras 65 – 67).

So what are the service requirements for a divorce petition under English law? Curiously, there is no time limit in which to serve a petition once issued under FPR 7.8. One might have thought that following the critical comments of Ewbank J the Family Procedure Rules Committee would have amended the rule to align it with CPR 7.5; but it has not. The position was the same under the Family Proceedings Rules 1991 rule 2.9 and the Matrimonial Causes Rules 1977 rule 14. I have not gone back further than that. Under the 1977 and 1991 rules the default position was that the court would serve the petition unless the petitioner asked otherwise. Now the default position is that the petitioner will serve unless she asks the court to do so (see FPR 6.5(1)). I do not think this slight change of emphasis alters the plain position which is that for decades there has not been any time limit in which to serve a petition.

Obviously, a strategic petition which is filed and left to hibernate for years while the parties carry on with their marriage is likely to be struck out as an abuse under FPR 4.4(1)(b) or as disclosing no reasonable grounds under FPR 4.4(1)(a). The statement, confirmed by a declaration of truth, that the marriage had irretrievably broken down would be plainly dishonest and allegations of adultery and behaviour would fall foul of section 2(2) or 2(3) Matrimonial Causes Act 1973. But, subject to that, it seems to me, rightly or wrongly, that the only formal requirement imposed by the law on a petitioner for divorce is to serve the petition at some unspecified point in the future. I agree with Gloster J that I cannot read the words "forthwith" or "as soon as practicable" into rule 7.8. The furthest I would go would be to infer a requirement of acting reasonably promptly and that promptitude should be informed in a broad way by the (extendable) time limits in CPR 7.5.

In this case the wife sent the papers to the Foreign Process Section for service under the EU Service Regulation (No 1393/2007) on 19 January 2016. Unfortunately, she gave the husband's address as No 214 Kurfurstendamm Berlin. That is his office address. His home address is No 215. Because the wife did not give the name of his business and there are a number of units in No 214, the papers were returned marked "address unknown", which does strike me as unhelpful. This minor error, if indeed it was an error, is not one that can be said to demonstrate that the wife had failed to take steps required of her within the terms of Art 16. And in any event she did perfectly serve the husband on 27 February 2016, four months and a day after the issue of the petition. In my judgment the wife acted with reasonable promptitude in serving her petition. On 19 January 2016 the husband issued his own German petition which he took the correct steps to have served on her on 3 March 2016. That is why there is a dispute as to jurisdiction under Art 16. But the husband's actions do not help to inform the answer to the question whether the English court is today, and at all times has been, seised (and therefore first seised) of the wife's petition. And my answer to that question is emphatically in the affirmative.

The husband's application to dismiss or stay the wife's petition is therefore dismissed. The consequence of this ruling is that the German court must now pursuant to Art 19(3) decline jurisdiction (which I imagine will require dismissal of the husband's German divorce application).

That concludes this judgment.