Family Law

(Family Division; Holman J; 15 July 2010)

The couple were Swedish nationals and were habitually resident in England for the last 15 years. The wife lodged the relevant divorce documents with the English court before the husband lodged the relevant divorce documents with the Swedish court. However, when the wife twice tried to serve the husband with the documents, on both occasions it was a Sunday. Although she then served on a weekday, by then the husband had served the Swedish proceedings.  

Editors of Rayden were correct and under current Family Proceeding Rules divorce petitions should not be served on a Sunday. However, there was no sanction provided in the rules.

Held that English court undoubtedly seised first. Service on a Sunday did not null and void service, but done in good faith, it was merely an irregularity. No prejudice or religious offence suggested and the court declined to exercise jurisdiction to set aside proceedings. The international context and jurisdictional issues did not affect this decision. No doubt that the English proceedings were issued first and as matter of fact the English documents were served first, albeit in manner that breached a technical rule.  

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