“…the simplest of questions…one might have thought that the answer would be as clear-cut and part of the A, B, C of the law. Apparently it is not.”

Mr Justice Holman, Weiner v Weiner [2010] EWHC 1843 (Fam)

For today’s international families it is often possible to choose whether to divorce in England or elsewhere – for the financially weaker party this will usually be the former. This is because, rightly or wrongly, the English legal system is seen as likely to be more generous to the financially weaker party to a divorce than the courts of other European Union countries.

Where a choice exists, the first court where a petition is issued will be ‘seised’ and its jurisdiction to hear the divorce will be secured (see Article 19 of the European Union’s Council Regulation (EC) No. 2201/2003 (known as Brussels II Revised)). To progress the divorce the petition must then be validly served on the Respondent.

In the case of Weiner v Weiner [2010] EWHC 1843 (Fam) the wife on two occasions arranged for the petition to be hand delivered to the husband – on both occasions the petition was hand delivered to the husband on a Sunday. The husband’s position was that the petition had not been validly served and that the Swedish courts, where he had subsequently issued a petition, were first seised.

The chronology of events is important:

– The wife’s petition was issued in the then Principal Registry of the Family Division on 17 January 2008.
– The petition was hand delivered to the husband on 27 January 2008 (a Sunday).
– On 12 November 2009, after an attempt at reconciliation, the wife’s solicitors filed a supplemental petition at the Principal Registry, in essence starting the process again. This petition was personally served on the husband by a process server on 15 November 2009 (a Sunday).
– The next day the husband issued proceedings for a divorce in the Swedish court.
– On 18 November 2009 (a Wednesday) a further copy of the wife’s petition was served on the husband by a process server.
– The husband’s petition was served on the wife on 21 November 2009

The question for the court was whether the wife’s petition had been validly served.

A petition should not be served on a Sunday or, if the petition was issued in the county court, on Good Friday or Christmas Day. The exception to this rule is in cases of emergency and where the leave of the court is obtained (see County Court Rules 1981, Order 7, r3). However, the judge in this case treated the ‘Sunday service’ as an irregularity that did not nullify the proceedings – it was done in good faith and with good intention. The judge commented that it was an ‘archaic, anomalous, pointless and technical (rule) … which the English court should, and would, overlook for all purposes’.

At the time Weiner was before the court the 1991 Family Procedure Rules were in force. They have since been replaced by the Family Procedure Rules 2010 which came into force on 6 April 2011. In Weiner the Judge noted that:

“…the process of drafting completely new Family Procedure Rules is now very advanced and when, or if, those rules are finally brought into force there will be no question of any continuing prohibition or restriction on service on a Sunday (unless, inexplicably, the current draft is changed in this respect) and family procedure will be aligned in this respect with all other civil procedure since the CPR were introduced in April 1999.”

It appears that the draft was in fact changed as the current Family Procedure Rules are silent on this point.

The court considered whether simply issuing a petition is sufficient to first seise a court or whether must it also be validly served.

The Judge referred to Article 16.1 and determined that the court is seised when the petition is lodged as long as there is not a subsequent failure to validly serve the document. This will necessarily be a case of looking back at the chronology of events. In Weiner although the wife’s petition was not validly served until two days after the husband’s petition was issued in Sweden she had, some six days earlier, issued a petition in England and, having validly served it on the husband at a later date, seised English court before the husband had seised the Swedish court.

What then of the party who issues a petition in secret only to hold on to it until such time as it suits them, for example after the issue of divorce proceedings in another jurisdiction by their spouse? On a literal reading of Article 16.1 this is perfectly legitimate; whether or not a court will afford a petitioner such a literal reading is a matter for the particular case.

Laura Dand
Solicitor

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