A judgement in the Irish High Court last month may have significant implications for international divorce practice, lawyers have claimed.
MH v MH concerned a separating couple. The husband lived in the Republic of Ireland and the wife in England. On September 7 last year, the husband filed an application for divorce at the Court Office in the Irish capital, but his estranged wife had already presented her corresponding documents at the English divorce centre in Bury St Edmunds earlier the same day.
EU regulation 2201/2003, commonly known as Brussels II Revised (B2R), governs family law disputes involving more than one member state, defining precedence in each case. Under Article 16 of B2R, the case should proceed in the jurisdiction of the first court to be ‘seised’ of a case –the one to have the initiating documents “lodged” with it.
This has implications in particular for divorce cases – different EU jurisdictions vary widely in their approach and generosity to economically dependent spouses.
Article 19 of B2R further states that when the courts in a particular EU member state receive a divorce application involving a spouse living in another state, they must suspend proceedings until precedence has been established.
These legal regulations have meant divorce lawyers in their clients’ preferred jurisdiction rushing to file their divorce applications first, before their estranged spouses do so in their own country of residence, in order to try and ensure that their own petition is issued first.
In MH v MH, the wife’s lawyers had filed their application at the Bury St Edmunds court before the hsuband’s did so in Dublin, but the petition itself was not issued by the court until after the husband’s in the Irish courts.
Mr Justice Henry Abbott was asked to consider therefore which application had precedence under B2R. He ruled that the term “lodged” in the wording of the regulation should be understood to mean the point at which a party’s application was filed with a court, and not the point at which the subsequent petition was issued, which has been the commonly accepted interpretation to date. Therefore the English courts had been ‘seised’ first and therefore held jurisdiction over the couple’s divorce.
The husband has already appealed Mr Justice Abbott’s ruling. A hearing is expected in the spring.
Read the court ruling here.