Family Law

Nicky Howarth and Hayley Trim, Irwin Mitchell

Once divorce proceedings have been issued in England solicitors might mistakenly sit back and assume they have secured jurisdiction and 'won' the jurisdiction race under Brussels II Revised (BIIR). But that is not necessarily the case. If the wife (in the stereotypical scenario) has issued divorce proceedings in England and your client, the husband, would have preferred the finances to be dealt with in another Brussels II country - Germany for example - where he would get a more favourable outcome, all might not be lost.

Let’s say the wife petitioned in England but has not yet issued Form A. If Germany has jurisdiction under the Maintenance Regulation (Council Regulation (EC) No 4/2009) – for example on the basis of the husband being habitually resident there (Art 3) – you can still issue proceedings in Germany for maintenance to be determined. The German Court is then first seised in relation to maintenance and the English Court must stay any subsequent application. If the German Court confirms it has jurisdiction, the English Court must decline jurisdiction in relation to maintenance (Art 12).

The English court would however remain seised in relation to the divorce and the non-maintenance financial issues under BIIR and so would have three options:

1. Stay the remaining financial claims and decline jurisdiction in respect of all the financial claims, transferring consideration of them to the German Court (provided that the German Court has jurisdiction to deal with them and its law permits consolidation of the proceedings). 
2. Adjourn the non-maintenance claims until the maintenance aspects have been determined in Germany and then go on to deal with the other claims. 
3. Deal with the other financial claims before maintenance is dealt with (arguably undesirable as the English Court prefers a holistic approach, and also see the question below about what exactly amounts to maintenance). 

The English Court cannot require the German Court to transfer the maintenance claims to it.

The question of course arises as to what is maintenance in the European context. The Maintenance Regulation applies to 'maintenance obligations arising from a family relationship, parentage, marriage or affinity' (Art 1). It undoubtedly applies to child support payments and spousal maintenance, but it could potentially also apply to a transfer of property if that is intended to ensure the support of a spouse rather than being solely for the purpose of a division of property (Van den Boogaard v Laumen (Case C-220/95)).

So notwithstanding that divorce proceedings were issued first in England and notwithstanding that the English courts were first seised and had jurisdiction in relation to the divorce, if a Form A had not been issued promptly then another European court could be first seised in relation to maintenance and consequently ultimately “win” the real jurisdiction race.

Of course if you act for the wife in a case when there is a potential jurisdiction race, it is important not to assume that you have secured jurisdiction having issued the divorce petition. If there is any possibility of another country having jurisdiction under the Maintenance Regulation then make sure you issue financial proceedings urgently – don’t rely on the fact that you have issued the petition or you could find your jurisdiction undermined.

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The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.