As I’m sure I’ve commented here before, ‘forum shopping’, whereby parties to divorce proceedings seek to have those proceedings take place in the country where they believe the outcome will be most favourable to them, is becoming ever more common in these days when so many families bestride international borders. Of course, the outcome with which they are concerned does not relate to the divorce itself, but rather to the financial settlement, with wives in particular believing that the settlement will be more favourable towards them if the divorce takes place in this country.
Normally the divorce will take place in the country where the divorce proceedings were first issued, which can lead, of course, to an unseemly race between the parties to ‘get their petition in first’. But, as we will see, getting your petition in first is not necessarily the end of the matter. There is a growing body of cases in which the party who was second in time to issue their divorce will still argue that the case should be heard in ‘their’ country – see, for example, the case of Thum v Thum, which I wrote about here back in July.
The latest such case to be reported is MB v TB, a decision of Mr Justice Williams in the High Court handed down after the Court of Appeal decision in Thum.
The facts in MB v TB were that the parties were both born in Germany, but the wife moved to England in 1991. The parties met in 1999, and in 2002 the wife moved to Munich to live with the husband. The parties were married in Rome in 2004 and moved to London in 2008. The marriage broke down (according to the wife) in late 2014, and in 2015 the husband returned to Germany to live. After various attempts at marriage counselling the wife commenced divorce proceedings in England on the 8th of July 2016 (interestingly travelling in person to the Bury St Edmunds divorce centre to issue her petition – an inconvenience that would not have been so bad prior to the advent of divorce centres, when divorces could be issued in a local court). On the 16th of August 2016 the husband issued a divorce petition in the Munich Family Court, claiming that the German Court was first ‘seised’ (i.e. had ‘possession’) of the divorce, because the wife had failed to take the steps she was required to take to have service of her petition effected on the husband.
As indicated, it fell to Mr Justice Williams to determine which country had jurisdiction. As he said, the case boiled down to two principal questions:
- Was the issuing of the petition by the wife an abuse of process, on the basis that she did not at that time consider the marriage to have irretrievably broken down, but was issuing a petition simply to secure the English jurisdiction in the event that a divorce was needed?
- Following the issue of her petition, did the wife subsequently fail to take the steps she was required to take to have service effected on the husband?
As to the first question, Mr Justice Williams concluded that the issue of the petition on the 8th of July 2016 was motivated by the wife’s desire to get divorced – it was a genuine petition designed to be served immediately by a proper method and to bring the marriage to an end.
As to the second question, I will not go into details, save to say that Mr Justice Williams found that the wife had not failed to take the steps she was required to take to have service effected.
Accordingly, the English court was seised of the wife’s petition, and the divorce will therefore proceed in this country.
I cannot, however, leave this case without mentioning this observation by Mr Justice Williams, of a type that is all too common, and rather depressing:
“It seems as if my decision on whether the English court is first seized may be only the conclusion of the opening engagements in this very hotly and vigorously contested dispute. It is perhaps the end of the beginning. That it has taken some two years to reach that stage does not bode well for the future progress of this divorce. It is clear from the correspondence, the applications that have been made and the submissions, that every point will be taken and no quarter given.”
Let us hope that the parties take this as a warning of the possible consequences of conducting their entire divorce in such an adversarial fashion, and find a way to settle matters by agreement.
You can read the full judgment here.