The international complexities of family law

Family Law|December 1st 2014

You just know that a law report is going to have an international dimension when it has a wonderful title like Ville de Bauge & Another v China (although the ‘China’ does not, as one might guess, refer to the country, but rather is the surname of the (Italian) respondent). The case is actually another jurisdictional dispute, which seem to be so de rigueur these days.

I did, of course, comment just recently here upon the complexities of modern family relationships, including their international dimension. This case involved a wife who is a French national residing in London and a husband who, as indicated, is an Italian national, residing in Italy. They married in Italy in October 1995 and have 3 children now aged 16, 14 and 13.

The marriage broke down in 2008 and on 14 October 2008 the husband issued a petition for personal separation in Italy, a necessary precursor to divorce in the Italian Court. The wife then issued a divorce petition in London, on 19 December 2008.

The wife challenged the jurisdictional basis of the husband’s petition, which led to an interim ruling accepting jurisdiction from the Italian Court on 22 May 2009. The wife appealed, and her appeal was rejected in November 2010. A final ruling as to legal separation was made in Italy on 9 November 2012.

On 28 May 2013 the wife issued a second petition in England, at which point neither she nor her husband had by then taken the step of formally serving the Italian separation order on the other, which would have enabled either to apply (after a further period of 30 days) for divorce in the Italian Court. In the absence of that service, the first date upon which either party could file in that court was in January 2014.

On 8 July 2013, the husband served the separation order on the wife, which meant that the order became final on 22 September 2013. On 23 September 2014 he issued a petition for divorce in Italy.

The English proceedings then went before Mr Nicholas Cusworth QC in the High Court, essentially to determine whether the wife could proceed with them, and that is what the report relates to.

The report does not state why the wife wanted the divorce to proceed in England, rather than in Italy. However, one can speculate that, like so many wives before her, she believed that she would obtain a more favourable financial settlement here than in Italy.

Unsurprisingly given the circumstances Mr Nicholas Cusworth QC found that the English court should decline jurisdiction, as the proceedings were first begun in Italy. There was some argument on behalf of the wife along the lines that the Italian proceedings were different because they were separation proceedings rather than divorce proceedings, but that argument was not accepted.

Obviously, the court procedure for separation and divorce will differ between countries (it was mentioned in the course of the judgment, for example, that there are no separation proceedings at all in Sweden, where the only type of matrimonial cause of action is for divorce). However, it seems quite correct to me that if separation proceedings are a necessary precursor to divorce proceedings in Italy, then the difference in proceedings should not entitle the other spouse to issue divorce proceedings in another country.

I suspect that the point in Ville de Bauge is quite limited and that it will therefore not be of great application to future cases. However, it is, as I indicated above, another example of the complexities of modern family relationships and, hence, of the work of the modern family lawyer.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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