Sun loungers and seisin: serving divorce petitions

Family Law|October 25th 2016

Last Saturday my morning was enriched by finding a new judgment by Mr Justice Mostyn on Bailii. In it, as we shall see, were references to towels on sun loungers and such legal niceties as ‘seisin’ and ‘a condition defeasant’. Not that those arcane legal terms should suggest that there was anything very complicated in the judgment, or the issue that Mr Justice Mostyn had to decide.

On the contrary, the point at issue in Thum v Thum was the apparently basic one of when a divorce petition should be served upon the respondent. It is unusual to have a High Court judge discuss something so seemingly trivial, albeit possibly with a lot riding upon it.

Why might there be a lot riding upon when a divorce petition is served? After all, the petitioner cannot proceed with her petition until she has had it served upon the respondent. She can’t get her divorce without notice to the respondent, who must be given the opportunity to defend or cross-petition.

Well, as with so many things in life that people hold to be important, it has to do with money. If, as is so often the case these days, the family has connections with more than one country the possibility of issuing divorce proceedings in different countries arises. With different jurisdictions having different rules regarding the division of matrimonial assets on divorce, this can have a critical bearing upon the outcome of any financial remedy proceedings. In particular, it is generally considered that the English courts are more generous towards wives than courts elsewhere, and therefore many wives consider it advantageous to them for the divorce to take place in this country rather than in another.

So, what decides where the divorce will take place? It all goes back to that word ‘seisin’. Seisin is a legal term used (in this instance) to refer to whether or not a court has taken ‘ownership’ of a case. Think of the related word ‘seize’, as in: ‘the court has seized possession of the case’. [*Editor’s note: ‘seisin’ comes from the Old French word ‘seisine’ – seizure] The date that the court becomes seised of divorce proceedings is vitally important where the proceedings could be, or have been, issued in two different countries.

The reason for this importance lies with the rules for determining in which country the divorce should proceed. These rules are contained in the Brussels II Regulation which, as Mr Justice Mostyn explains, operates a ‘first past the post’ system – i.e. wherever the divorce is issued first is where the proceedings shall take place. Or, to use the jargon: whichever court is first seised will be the court that deals with the divorce.

So, when exactly is a court seised of divorce proceedings? Well, Brussels II says that a court shall be deemed to be seised “at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent”. So, as far as service of a divorce petition is concerned, the important point is that the petitioner must have done what she was required to do to effect service of the petition upon the respondent. What she is required to do depends upon the law in that particular country.

OK, so what is the rule as to service of a divorce petition in this country? This is where things get a little vague, and why there was a dispute in Thum v Thum. Unlike for other types of court proceedings, the rules do not specify any time limit within which the divorce petition must be served upon the respondent. All that is required is that the petition be served at some unspecified point in the future.

Now, obviously, as Mr Justice Mostyn pointed out, there will be some limit upon how long a petition can be left without being served. For example, as he said, a petition left unserved for years while the parties carry on with their marriage is likely to be struck out as an abuse of the court’s process. Otherwise, however, the furthest that Mr Justice Mostyn was prepared to go was to state that the petition should be served ‘reasonably promptly’.

So what happened in the case? Well, Mrs Thum issued divorce proceedings in this country on the 26th of October 2015, but the petition was not served upon her husband until the 27th of February 2016. Meanwhile, the husband had issued divorce proceedings in Germany on the 19th of January 2016. The husband, wanting the divorce to proceed in Germany, applied to have the wife’s English petition dismissed on the basis that the English court had not become seised of the proceedings, because the wife had failed to take the steps she was required to take to serve the petition upon him.

Considering the English rules on service of divorce petitions, Mr Justice Mostyn’s decision was an easy one. The English court became seised when the wife’s petition was issued, and her failure to serve the petition for four months did not alter this: in his judgment the wife had acted with reasonable promptitude in serving her petition. Accordingly, the husband’s application was dismissed, and the divorce is to proceed in this country.

And what of sun loungers and conditions defeasant? To find out you will have to read the full judgment, which can be found here.

Image by Edward Simpson via Flickr under a Creative Commons licence

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