Court Guidance on Cross-Border Divorce

In an important decision that underlines the primacy of European law and clears up a glaring lacuna in the law relating to cross-border divorce, a wife’s English divorce petition has been reinstated by the Court of Appeal notwithstanding her prior agreement that parallel proceedings in Spain would take precedence.

The couple had lived in Spain following their marriage in Las Vegas. Following the breakdown of their relationship, the wife had returned to England where she launched divorce proceedings. However, she had subsequently entered into an agreement with her husband whereby she consented to abandon the English proceedings and to submit to the jurisdiction of the Spanish courts.

She did not in fact abandon the English proceedings and, on the husband’s application, a judge stayed and dismissed them on the basis that, by reason of the agreement, the wife was estopped from pursuing them further.

In allowing the wife’s appeal against that decision, the Court found that, by virtue of Article 19 of Council Regulation (EC) No. 2201/2003 – which concerns cross-border jurisdiction and the recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility – the English proceedings took precedence, having been launched first in time.

The relevant power of the English courts to stay divorce proceedings – contained within Section 5 of the Domicile and Matrimonial Proceedings Act 1973 – had been subsumed by the provisions of the Council Regulation. It was the latter that was intended to exclusively govern jurisdictional issues where two sets of parallel divorce proceedings were on foot with EU member states.

In those circumstances, the Court accepted the wife’s argument that the effect of the Council Regulation was to prevent the English courts from implementing any agreement between the parties as to the appropriate forum for the divorce proceedings. On the basis that the proceedings launched first took precedence, the wife’s English divorce petition was reinstated.