Thum v Thum [2018] EWCA Civ 624 - Goodman Ray

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The Court of Appeal recently had to determine the issue of effective service of divorce proceedings under Article 16 of Council Regulation (EC) No 2201/2003 (Brussels IIa).

Under Article 16(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.”

In this case the wife issued her petition for a divorce in England on 26 October 2015, however she did not make any attempts to serve it on her husband until 19 January 2016. Therefore the husband was not served with the petition until 27 February 2016. Within that period, the husband issued his divorce for a petition in Germany on 20 January 2016. The issue that the court had to therefore determine was whether the wife had taken all of the necessary steps for effective service and whether England or Germany had jurisdiction of the divorce proceedings in accordance with Article 19 of Brussels IIa.

At first instance, Mostyn J dismissed the husband’s application seeking a stay or dismissal of the wife’s petition on the basis that the English court was second seised. He determined that in accordance with Article 16 the English court was first seised when the wife lodged her petition in England.

The husband appealed Mostyn J’s decision on the basis that the wife’s service had been ineffective because the husband was initially served at his business address in Germany, not his home address. Furthermore, the husband sought that a time limit be implied into Family Procedure Rule (FPR) r7.8, that service be effected “as soon as possible” or “as soon as practicable”.

The wife’s case was that the question of what steps are required to be taken under Article 16(a) are to be determined by our domestic law. Furthermore, the FPR provide no time by which service must be effected and therefore it was submitted that no additional required steps, including time, can be incorporated by implication. Therefore it was submitted that the wife had not failed to take any of the required steps.

The Court of Appeal agreed with the wife’s submissions and dismissed the husband’s appeal. Moylan LJ giving the lead judgment commented that:

“Service is a critical part in the conduct of proceedings and parties need to know easily and clearly what they must do in order to comply with the rules as to service. It might be sensible or even appropriate for some additional specific obligation to be included but I can see no principled basis on which such can be implied. What period would be selected and why would that period be appropriate? In this context, what would “as soon as possible” or “as soon as practicable” mean?”

This case recognised the difficulties with a party seising the jurisdiction of one court without the respondent being served promptly. As a result, the Rule Committee was invited to consider whether any additional obligations in respect of service should be included in the FPR 2010.

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