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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jefferson v O'Connor [2014] EWCA Civ 38 (28 January 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/38.html Cite as: [2014] EWCA Civ 38 |
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ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT
His Honour Judge Booth sitting as a Deputy Judge of the High Court
Claim Number BB12D00309
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MCFARLANE
and
LORD JUSTICE VOS
____________________
Diana Hilary Jefferson |
Appellant |
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- and - |
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Conor Dominic O'Connor |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Edmund Farrell (instructed directly under the Public Access Scheme) for the Respondent husband
____________________
Crown Copyright ©
Lord Justice Vos:
Introduction
Chronological background
"[the wife] undertakes that upon signature of this agreement and in a maximum time limit of two days she will duly prove that she has abandoned the divorce proceedings taken in the United Kingdom …
The parties hereto grant power of attorney to each other to file this agreement before the courts and tribunals of Estepona to be properly ratified, thereby submitting their divorce to the Spanish jurisdiction".
The issue
The Domicile and Matrimonial Proceedings Act 1973
"(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) –
(a) the court has jurisdiction under the Council Regulation; or …
(6) Schedule 1 to this Act shall have effect as to the cases in which matrimonial proceedings in England and Wales … are to be, or may be, stayed by the court where there are concurrent proceedings elsewhere in respect of the same marriage, and as to the other matters dealt with in that Schedule; but nothing in the Schedule—
(a) requires or authorises a stay of proceedings which are pending when this section comes into force; or
(b) prejudices any power to stay proceedings which is exercisable by the court apart from the Schedule.
(6A) Subsection (6) and Schedule 1, and any power as mentioned in subsection (6)(b), are subject to Article 19 of the Council Regulation".
"(1) Where before the beginning of the trial or first trial in any matrimonial proceedings, other than proceedings governed by the Council Regulation, which are continuing in the court it appears to the court –
(a) that any proceedings in respect of the marriage in question, or capable of affecting its validity or subsistence, are continuing in another jurisdiction; and
(b) that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings in the court or in those proceedings so far as they consist of a particular kind of matrimonial proceedings,
the court may then, if it thinks fit, order that the proceedings in the court be stayed or, as the case may be, that those proceedings be stayed so far as they consist of proceedings of that kind".
The Council Regulation
"1. In matters relating to divorce … jurisdiction shall lie with the courts of the Member State
(a) in whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses".
"1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce … shall have jurisdiction in any matter relating to parental responsibility connected with that application where:
(a) at least one of the spouses has parental responsibility in relation to the child; and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child …".
"1. A court shall be deemed to be seised:
(a) 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;
or
(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court".
"1. Where proceedings relating to divorce … between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. …
3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court. In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised".
The parties' arguments
Extension of time
The jurisdictional issue
"During the negotiating process the United Kingdom held profound reservations at the prospect of resolving jurisdictional conflicts in this field by the rule of lis alibi pendens rather than by the doctrine of forum conveniens, which had statutory expression in paragraph 9 of Schedule 1 of the [DMPA]. … The objection to the proposed convention was encapsulated in two arguments: first that an arbitrary rule of lis alibi pendens was a poor substitute for a balanced discretionary appraisal of fairness and convenience that the doctrine of forum conveniens permits. The second argument was that the introduction of a rule giving priority to the court of first issue would inevitably encourage a rush to be first, eliminating or minimising attempts at reconciliation or conciliation. However the experience of 18 months of operation has been reassuring. Research carried out … in September 2002 did not suggest that the Regulation had resulted in any significant shift in accepted standards of professional good practice at the stage when divorce proceedings are in contemplation. Furthermore, in relation to the first argument, the loss of an ability to conduct a balanced judgment of the more appropriate jurisdiction is compensated by the elimination of the need for expensive litigation (generally conducted concurrently in both jurisdictions) as each party manoeuvres to establish the jurisdiction of his or her preference as the more convenient jurisdiction".
i) First, article 12(1) of the Council Regulation (supra) expressly provides for the extension of the jurisdiction of a court exercising jurisdiction under article 3 in divorce proceedings to matters relating to parental responsibility where such jurisdiction has been expressly agreed by the parties. Article 12 also provides other extensions of jurisdiction in cases of agreement, but there is no provision permitting articles 16 and 19 allowing precedence to the first divorce proceedings in time to be overridden by agreement between the parties.
ii) The thrust of article 19 (and article 16) of the Council Regulation is prescriptive, and section 5 and schedule 1 to the DMPA clearly exclude cases to which article 19 applies. Thus, it seems to me that a simple rule was intended to apply in divorce proceedings without exceptions.
iii) If the parties wish to agree that jurisdiction over their divorce shall be in a particular Member State having jurisdiction under article 3 of the Council Regulation, it is still open to them to achieve that result. They can simply start only one set of proceedings in that Member State or, if there are already two sets, withdraw or discontinue the proceedings they do not wish to pursue. Thus, whilst it is true that the Council Regulation prevents the parties contracting out of the jurisdiction of the court in the first Member State seised, it does not prevent them giving effect to an agreement if they still wish to do so. In this case, if the wife had carried out her Agreement to abandon the English divorce proceedings, the Spanish proceedings would have become first in time and would have taken precedence.
Disposal
Lord Justice McFarlane:
Lord Justice Rimer: