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Germany v England: another forum shopping case

Another week, another ‘forum shopping’ case. Another week, another ‘forum shopping’ case. Only last week I wrote here about the Mantegazza case, in which a wife failed to persuade the English court that her divorce should be heard in this country. Now comes the case Thum v Thum, which again concerned a wife seeking to have her divorce heard here. As Lord Justice Moylan said in his leading judgment in the case: “No doubt behind this preliminary conflict lie [the parties’] competing views as to which courts will be more beneficial when determining the financial consequences of their divorce.” Quite.

The relevant facts, in this case, were that the parties are both German. The husband is said to be a “multi-millionaire”. The parties married in Germany in 2001 and moved to live in London in 2009. The marriage broke down in 2015, and the wife issued divorce proceedings on the 25th of October that year. The wife took no steps to serve her divorce petition on the husband until 19th of January 2016, when her solicitors sent it to the Foreign Process Section of the High Court for service upon the husband in Germany, where he was then residing. On the following day, the husband issued divorce proceedings in Germany.

In the event, the wife had not given sufficient details of the husband’s German address to enable service to take place there. The husband was not served with the wife’s petition until the 27th of February 2016, when he was in England. The wife was served with the husband’s petition a few days later, on the 3rd of March.

The issue of where the divorce should be heard fell to be decided by the relevant European regulation dealing with such jurisdictional matters, Council Regulation (EC) No 2201/2003, better known as ‘Brussels IIa’. The critical question was: which court was first ‘seised’ (i.e. had ‘possession’) of the matter? Brussels IIa states that a court is 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”.

The husband applied to the English court for the wife’s divorce petition to be stayed (i.e. halted) or dismissed, on the basis that the German court was first seised. It was argued on his behalf that the English court was not seised of the wife’s petition when the German court became seised of his petition, as the wife had by then failed to take the steps she was required to take to have service of her petition effected on him.

The husband’s application went before Mr Justice Mostyn in the High Court. He found that the English court was the first seised. The wife had not failed to take any required step, as the rules in England did not stipulate any time period within which the petition should be served.

The husband appealed, to the Court of Appeal. The Court of Appeal dismissed the appeal. Lord Justice Moylan agreed with Mr Justice Mostyn that the English rules did not stipulate any required steps for the wife to take to have the petition served upon the husband.

He concluded:

“The outcome to this appeal is found by determining (i) what steps under English law a petitioner is “required to take to have service effected” and (ii) whether the wife has failed to take those steps. As [I have] set out above, there are no specific required steps. There is only the generally stated obligation to serve.

Accordingly, the wife, in this case, has not failed to take any required step. Further, given that there are no required steps, the fact that the wife gave insufficient details to enable the husband to be served at the address given for service in Germany cannot amount to a failure to take a required step. In my view, the appeal must, therefore, be dismissed.”

Lord Justice Richards and Lady Justice King agreed. Accordingly, the divorce will proceed in this country.

You can read the full Court of Appeal judgment here.

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, with his content now supporting our divorce lawyers and child custody lawyers

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