(Court of Justice ofthe European Union, 6 October 2015)
[The judgment and accompanying headnote has now published in Family Law Reports  1 FLR 31]
Jurisdiction –Financial remedies – Concurrent proceedings in two Member States – First set ofproceedings had expired – Whether proceedings in the court second seised shouldbe struck out
Please see attached file below for the full judgment.
The Court of Justiceof the European Union gave a preliminary ruling during the course of divorceproceedings taking place in two Member States regarding the principles of lispendens where proceedings in the court first seised had expired.
The French husband and wife were married in France in 1997 after entering into a marriage contract governed by the French law principle of separate property. From 2000 they lived in the UK and had three children together.
The couple separated in 2010, the husband moved out of the matrimonial home and lodged a request for judicial separation with the family court in France. The wife applied to the Child Support Agency for an assessment of child maintenance and filed a petition for divorce alongside an application for financial remedy. The English court declined jurisdiction on the basis of Art 19 of BIIR and that the French court was already seised.
In 2011 the French court made a non-conciliation order and declared that the issues relating to the children, including applications relating to maintenance obligations were to be dealt with by the English court but that the French court had jurisdiction to adopt interim measures. The husband was ordered to pay the wife €5,000pm. That order was upheld on appeal.
Thirty months after the non-conciliation order no petition had been filed and, therefore, the provisions of the order expired. The husband's previous petition for divorce was declared illegitimate because judicial separation proceedings were still pending at that time. A second divorce petition was issued after the expiration of the conciliation order by the husband who also sought the wife's divorce petition in the UK to be struck out on the ground that the jurisdiction of the French court had been established.
The English court considered that the husband had acted to prevent the wife from issuing proceedings in the UK and that he had acted in a manner contrary to the intention of the EU legislature in that regard. The procedural choices he had made abused the rights enshrined by the Regulation. It was unclear whether in those circumstances the jurisdiction of the French court could be considered to have been established within the meaning of Art 19(1) and (3) of the Regulation. The proceedings were stayed and an application was made to the Court of Justice of the European Union for a preliminary ruling. The referring court asked whether in the case of judicial separation and divorce proceedings brought between parties before the courts of two Member States Art 19 of BIIR should be interpreted to mean that where proceedings before the court first seised had expired after the second court in the second Member State has been seised, the jurisdiction of the court first seised should be regarded as not being established. In particular it was also asked whether the conduct of the applicant in the first proceedings, notably his lack of diligence and the existence of a time difference between Member States were relevant for the purpose of that question.
The court ruled that the rules of lis pendens were intended to prevent parallel proceedings before courts of different Member States to avoid conflicting decisions. A clear and effective mechanism was intended to resolve such situations. The clear words 'court first seised' were set out in the Regulation.
Where two sets of proceedings had been brought before the courts of different Member States, and one set of proceedings expired, the risk of irreconcilable decisions, and thereby the situation of lis pendens within the meaning of Art 19 of the Regulation, disappeared. It followed that, even if the jurisdiction of the court first seised had been established during the first proceedings, the situation of lis pendens no longer existed and, therefore, that jurisdiction was not established.
In the case of judicial separation and divorce proceedings brought between the same parties before the courts of two Member States, Art 19(1) and (3) of the Regulation had to 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 had expired after the second court in the second Member State had been seised, the criteria for lis pendens were no longer fulfilled and, therefore, the jurisdiction of the court first seised should be regarded as not being established.
JUDGMENT OF THE COURT (Third Chamber)6 October 2015
In Case C 489/14
REQUEST for a preliminary ruling under Article 267 TFEU from the High Court of Justice of England and Wales, Family Division (United Kingdom)
Made by decision of 31 October 2014, received at the Court on 4 November 2014, in the proceedings
THE COURT (Third Chamber),composed of M. Ilešič, President of the Chamber, A. Ó Caoimh, C. Toader, E. Jarašiūnas and C.G. Fernlund (Rapporteur), Judges,Advocate General: P. Cruz Villalón,Registrar: I. Illéssy, Administrator
having regard to the written procedure and further to the hearing on 1 June 2015,after considering the observations submitted on behalf of:
– A, by T. Amos QC and H. Clayton, Barrister
– the United Kingdom Government, by M. Holt, acting as Agent, and by M. Gray, Barrister
– the European Commission, by M. Wilderspin, acting as Agent
After hearing the Opinion of the Advocate General at the sitting on 8 September 2015,gives the following
A v B (C-489/14)