We receive many enquiries from potential clients who reside overseas but still have a sufficient connection with England or Wales to be able to issue a petition for divorce or dissolution of a civil partnership here.
Often, their spouse or partner does not know that they are making this enquiry. Sometimes they are desperate to return back home. What they often have in common, if they are living within the European Union, is that when they get in touch they do not realise that they are facing a race. Not only that, it is a vitally important race and losing it could have significant consequences for their future.
That race is to issue divorce proceedings. There are many articles on this blog about the rules under the EU treaty called Brussels II but, in short, the first country in the EU (with the exception of Denmark) in which divorce proceedings are commenced will have jurisdiction in priority over any other EU country. If the other spouse (I will refer to spouse but in doing so also include civil partners and refer to the dissolution of civil partnerships as well) issues divorce proceedings in the other EU country then those proceedings issued second, having lost the race to issue, will be stayed if not dismissed altogether by the courts of that country. That is of course provided that the person who issued first has been able to correctly establish jurisdiction by reference to habitual residence or domicile and they have satisfied the regulations of that country for issuing proceedings.
But what happens once the proceedings have been issued?
When I receive these enquiries, I often stress the importance to the client to be the first to issue (I should add not necessarily in England but in the jurisdiction which will be most beneficial to them from a financial and practical perspective). But often the client does not want their spouse to know straightaway. They will ask “Can I issue proceedings but delay giving him/her the petition?” to which my reply is to say that they do not have to serve their spouse immediately but should be seen to be trying to serve them as soon as possible.
But how soon is soon?
The decision of Mr Justice Mostyn in the recent case of Thum v Thum provides some useful guidance.
In that case, Mrs Thum issued a petition in England on 26 October 2015 however the husband was only served by personal service on 27 February 2016 when he landed in England at Heathrow Airport. In the meantime she had attempted service through the foreign process section in early January 2016 but had provided an incomplete address for her husband and it had been returned. Furthermore, in January 2016 the husband issued a petition in Germany which he served on the wife in March 2016.
The husband applied to the court to say that the wife had failed to take proper steps to serve her petition and should be struck out. The court disagreed with him.
In his judgment, Mr Justice Mostyn said:
“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. [Family Procedure Rules, the requirement to serve a petition issued on the other party]”
“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.”
He noted that there is no requirement to serve that petition “forthwith” or “as soon as practicable”. The furthest he would go was that he would expect “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.” This refers to the issue of a civil claim form and is four months from the date it was issued if it deals with this jurisdiction and six months if service is overseas.
When I advise clients reluctant to issue proceedings but knowing they have a race to issue, I tell them that the divorce can be issued and then the divorce papers can be held on file for a period of time. But not indefinitely. How long has however been a bit of a grey area. This case provides some clarity: a few months would be acceptable, ideally no more than four to six months, but approaching a year or more would not be.
Jurisdictional issues in divorce are complicated. England and Wales is not going to be the best place for everybody to get divorced. The first you thing you should do is take advice from a solicitor who has experience of international divorce and can put you in contact with lawyers in other jurisdictions. Then you can consider your options and weigh up the pros and cons and act decisively for you when needed.
Read the full judgment here.