Recent Divorce Jurisdiction Race Cases: France v England

25 Feb 2016

There have been two recent interesting cases involving a jurisdiction dispute between a Husband and Wife on divorce.

In E v E the Husband commenced divorce proceedings in France in 2011, and in 2012 the French court issued a non-conciliation order. This authorised the parties to apply for divorce by filing an assignation. If they did not do so within 30 months the authorisation to petition for divorce would become void.

The Husband filed an assignation in May 2015, within the 30 month period. After the expiry of the 30 month period, the Wife issued a petition in England.

The Wife submitted to Mr Justice Moylan in the High Court that her petition should not be dismissed. She relied on the recent decision of the Court of Justice of the European Union (CJEU) in A v B.

In that case, neither party filed an assignation within the 30 month time period. 3 days before that period expired the Wife’s divorce petition was issued. The CJEU decided that the English Court in A v B had jurisdiction.

Returning to E v E, the Wife argued that because of the decision in A v B, her petition should not be dismissed (although jurisdiction be declined at this stage), so that it could be restored in the event of the Husband’s French proceedings being dismissed.

Mr Justice Moylan was of the view that the appropriate method of declining jurisdiction was to dismiss the wife’s petition: “not to stay it or somehow otherwise to leave it in place.” He said that if he were to follow the Wife’s proposal he would “be doing no more than staying the petition, as it would remain in existence.”

The Judgment in A v B is interesting to read regarding the interplay between Articles 16 and 19 of Brussels II revised. The cases can be found here: E v E and A v B.

Written by Lisa Pepper

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