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*PIL Case Law

Published on October 2nd, 2018 | by efi kloyeri

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Summary: C- 489/14 regarding the jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility

Key-words: Judicial cooperation in civil matters- Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility- Regulation (EC) No 2201/2003- Lis pendens- Articles 16 and 19(1) and (3)- Judicial separation proceedings in a first Member State and divorce proceedings in a second Member State- Jurisdiction of the court first seised- Concept of ‘established’ jurisdiction-Lapse of the first proceedings and commencement of fresh divorce proceedings in the first Member State- Consequences- Time difference between the Member States- Effects on the procedure for seising the courts”

A) The facts in the main proceedings and the questions referred

Ms A and Mr B, who are French nationals, were married in France and later moved to the United Kingdom, where they had three (3) children. On 30 March 2011, Mr B lodged a request for judicial separation with the family court of the tribunal de grande instance de Nanterre (Nanterre Regional Court) (France) while in response Mrs A applied to the Child Support Agency for child support for the children in her care, then filed a petition for divorce and a separate application for maintenance with the courts of the United Kingdom. The High Court of Justice of England & Wales, Family Division, nevertheless declined jurisdiction in respect of the divorce petition on 7 November 2012, on the basis of Article 19 of Regulation No 2201/2003. The family court judge at the tribunal de grande instance de Nanterre made a non-conciliation order and declared that the issues relating to the children, including the applications concerning maintenance obligations, were to be dealt with in the United Kingdom, but that the French courts had jurisdiction to adopt certain interim measures.

Mr B filed a petition for divorce in a French court, while also asked  for Ms A’s divorce petition in the United Kingdom to be dismissed or struck out on the ground that the jurisdiction of the French courts had been unambiguously and incontrovertibly established within the terms of Article 19(3) of Regulation No 2201/2003. In those circumstances, the High Court of Justice of England and Wales, Family Division, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)  For the purposes of Article 19(1) and (3) [of Regulation No 2201/2003], what does “established” mean, in circumstances where:

(a) the applicant, in the proceedings in the court first seised (“the first proceedings”), takes virtually no steps in the first proceedings beyond the first court appointment, and in particular does not issue a Petition (Assignation) within the time-limit for the expiry of the Request (Requête), with the result that the first proceedings expire undetermined by effluxion of time and in accordance with the local (French) law of the first proceedings, namely 30 months after the first directions appointment;

(b) the first proceedings expire as above very shortly (3 days) after the proceedings in the court second seised (“the second proceedings”) are issued in England, with the result that there is no judgment in France nor any danger of irreconcilable judgments between the first proceedings and the second proceedings; and

(c) by virtue of the United Kingdom’s time zone the applicant in the first proceedings would, following the lapse of the first proceedings, always be able to issue divorce proceedings in France before the applicant [in the second proceedings] could issue divorce proceedings in England?

(2) In particular, does “established” import that the applicant in the first proceedings must take steps to progress the first proceedings with due diligence and expedition to a resolution of the dispute (whether by the Court or by agreement), or is the applicant in the first proceedings, having once secured jurisdiction under Articles 3 and 19(1) [of Regulation No 2201/2003], free to take no substantive steps at all towards resolution of the first proceedings as above and free thereby simply to secure a stop of the second proceedings and a stalemate in the dispute as a whole?’

Β) Legal Context

Article 19(1) and (3) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility

 C) Consideration of the question referred

In the case of judicial separation and divorce proceedings brought between the same parties before the courts of two Member States, Article 19(1) and (3) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that, in a situation such as that at issue in the main proceedings in which the proceedings before the court first seised in the first Member State expired after the second court in the second Member State was seised, the criteria for lis pendens are no longer fulfilled and, therefore, the jurisdiction of the court first seised must be regarded as not being established.

Angie-Eftihia Klogkiri

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