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BRUSSELS II REVISED: N v N (BIIR: Stay of Maintenance Proceedings) [2012] EWHC 4282 (Fam)

Date:25 JUL 2013
Law Reporter

(Family Division, Moor J, 5 October 2012)

The wife, a Dutch national, applied for periodical payments under s 27 of the Matrimonial Causes Act 1973 while the husband, a Swedish national, opposed the application and asked the court to decline jurisdiction.

The husband and wife married in Las Vegas and thereafter lived a luxurious lifestyle, living mainly in Sweden and staying at their holiday home in Spain. They visited the UK occasionally, staying in hotels. The husband's finances were based predominantly in Sweden.

Following the marriage breakdown the wife came to the UK to start a business while the husband issued divorce proceedings in Sweden. The wife ignored the proceedings and issued her own in the English court. The husband ignored those proceedings but the judge deemed service and pronounced decree nisi at which point the husband instructed lawyers and applied to set aside the decree nisi. The wife claimed to be in financial dire straits and notified the court of her intention to apply for interim maintenance.

In the Swedish court the judge determined that it was first seised pursuant to BIIR and, therefore, the English divorce proceedings were stayed. However, argument ensued about what ought to happen with the maintenance proceedings, and whether, following the decision in Wermuth v Wermuth (No 2) [2003] 1 FLR 1029 a maintenance application was not a protective measure pursuant to Art 12 of BIIR and, therefore, had to be stayed as well.

In asking the court to decline jurisdiction, the husband offered the wife £1,500 pm interim periodical payments plus £5,000 towards her issuing an application for maintenance in Sweden. The wife claimed this was inadequate, sought £6,000 pm plus all of her costs.

The maintenance and divorce proceedings while being separate legal matters were certainly related for the purposes of BIIR. It was clear that the court should not entertain the application and should decline jurisdiction pursuant to Art 13(2). To do so would be to overturn the decision in Wermuth and to espouse the spirit of Brussels II. In addition the husband's finances were predominantly based in Sweden making it more appropriate for an investigation to take place there.

The wife was ordered to pay costs but only after the determination of the financial proceedings.