Frank Arndt, the Head of the International Family Law Department at Stowe Family Law, recently represented the wife in a complex multinational divorce case.
Jefferson v O’Connor was an appeal concerning parallel divorce proceedings in England and Spain. The case raised important issues about jurisdiction when divorce proceedings run concurrently in two member states of the European Union. Council Regulation (EC) No 2001/2003, more commonly known as Brussels II Revised, governs jurisdiction in international family law cases.
The wife launched proceedings in England in March 2010. However, a joint petition for divorce by mutual consent was later lodged by both parties with the Spanish courts but contrary to Spanish law, no marriage certificate was lodged. Eventually the wife considered that the husband was not honouring the agreement and so decided to withdraw her consent. She did not withdraw her English divorce petition.
When the case came before His Honour Judge Booth, both sets of proceedings were still ongoing.
The judge ruled that the English proceedings should be stayed (suspended) and therefore dismissed on the grounds that the wife had come to an agreement with the husband in September to abandon the English proceedings. This legal principle is known as ‘estoppel’ – barring a person from making a particular claim on the basis of their previous conduct.
The learned judge refused permission to appeal. The wife issued a second divorce petition on 11 April 2012, which Judge Booth stayed at a hearing on 19 March 2013.
The wife appealed this ruling, arguing that Brussels II prevented the courts from recognising any agreement between the parties on the appropriate venue (‘forum conveniens’) for divorce proceedings. Her legal team asserted that the regulation automatically awarded jurisdiction to the first country in which proceedings were launched (the first court ‘seised’). Countries in which any subsequent proceedings were launched were therefore required to decline jurisdiction in the divorce.
The matter came before Lord Justices Vos, McFarlane and Rimer at the Court of Appeal. The Lord Justices found in favour of the wife, with Lord Justice Vos saying that Brussels II “is intended to govern cases, such as this, where there are two sets of divorce proceedings in Member States that have opted in to [Brussels II]. Article 19 [of Brussels II] is clear. It provides that “[w]here the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court“.
There was no scope for a stay on discretionary forum conveniens grounds under the Domicile and Matrimonial Provisions Act 1973, nor under the inherent jurisdiction (legal authority) of the High Court , in a case where Brussels II covers the field.
The Lord Justices also ruled that ‘estoppel’, citing the wife’s previous agreement as a reason for her petition, would have undermined the scope of Brusssels II and introduced an element of judicial discretion to the case, something which it clearly prohibits.