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Case analysis: Winning the race to the divorce court by coming second

Date:22 FEB 2019
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Analysis: Winning the race to the divorce court by coming second: CJEU delivers surprising lis pendens judgment

On 19 January 2019 the CJEU handed down its judgment in Case C-386/17, between Romania and Italy, which can be found here. David Hodson OBE, a co-founder and partner at The International Family Law Group LLP, examines the case.

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The very simple point, in the context of family law forum disputes within the EU, is as follows: where divorce, judicial separation or similar marital proceedings are lodged first in one country and secondly in another country but the latter country ignores or disregards the first set of proceedings and pronounces its own divorce, should that divorce be recognised in the first seized country and around the EU? Similarly with children orders and maintenance orders. The CJEU answer is yes. This is despite seemingly creating a lawless and chaotic state of affairs which only encourages countries to ignore proceedings already underway, first in time, in another EU member state. In circumstances where the CJEU has specifically criticised member states for taking proactive steps to stop proceedings in the second in time country, is this not therefore going to occur more often? If so, what becomes of the race to court, lis pendens?

The EU law on forum disputes

It is a fundamental feature of EU family law, since March 2000 and the original Brussels II, that where proceedings could be in two or more EU member states, it is the country where the proceedings were lodged first which has priority. There is a mandatory duty on the second seized to stay their proceedings whilst perhaps jurisdiction is being examined and then to dismiss them.

This applies in respect of divorce proceedings under Brussels II, maintenance proceedings under the EU maintenance Regulation and some children proceedings also under Brussels II.  It has been highly controversial. Because the only criteria is who lodges proceedings first irrespective of the strength of the connection with each country, and where the outcome can be so different between even neighbouring EU member states, there is a huge incentive to race to court. As a consequence it is a colossal disincentive to mediation, negotiation, marriage reconciliation and attempts to settle before proceedings. It gives encouragement to the party keen to litigate and to the party with funds for cross-border advice and places the spouse who wants to seek to save the marriage or resolve matters without litigation at a disadvantage. Nevertheless it is a fundamental plank of EU family law. Within England and Wales, there is a contradiction because in any case with a non-EU member state, the forum criteria is not who was the first to lodge proceedings, a criteria indeed often deprecated because of the impact on marital conduct, but with which country does the family have the closest connection, forum non conveniens. This meets many perceptions of fairness and justice. But within the EU, the race to court is all that matters. Practitioners have to adapt their professional practice to be ready to lodge proceedings very fast in order to win the race.

The facts and proceedings of the case

The couple married in Rome in October 2005 and lived in Italy until the birth of their child in February 2006. The relationship deteriorated and the mother took the child with her to Romania and did not return.

In May 2007, the husband applied to the district court in Teramo, Italy, for a legal separation and custody. Under Italian law he could not apply immediately for a divorce. The wife entered an appearance and applied to dismiss the application and counterclaimed, seeking maintenance. In January 2012, almost 5 years later, the Italian court pronounced legal separation, not divorce which was still not available, and adjourned a decision on children arrangements

However in the meantime whilst these proceedings were pending, albeit pending over many years, the wife in September 2009, more than two years after the start of the proceedings in Italy, applied to the first instance court in Bucharest, Romania, seeking divorce, sole custody and maintenance. The father entered an appearance, raising understandably the objection that Italy was the first court seized under lis pendens, in that there were ongoing legal separation and parental responsibility proceedings in Italy. Nevertheless in May 2010, within a year of the commencement of the proceedings, the Romanian court pronounced the divorce, awarded custody to the mother, dealt with rights of access and ordered maintenance against the father.

That decision was upheld first by the Bucharest regional court in December 2012 and then by the Bucharest Court of Appeal in June 2013, some 4 years from the date of issue; not fast but not slow going through three levels of court.  They dismissed the husband’s appeal. Of course by the date of these hearings, there had been the first hearing in Italy in January 2012 which had pronounced its own legal separation.

The Italian first instance proceedings were eventually concluded in July 2013, six years after they started, when the court granted sole custody of the child to the father and ordered immediate return of the child to Italy and determined the mother’s rights of access. It should be said in passing that one of the primary purposes of the EU legislation was to avoid directly conflicting judgements in relation to the same family running in parallel, as here. Whether the forum test is the racing to lodge proceedings or closest connection decisions, these parallel contradictory decisions are of no help to a family whatsoever.

But equally it must be said that six years to a final first instance decision is woeful. To order an “immediate” return of a child aged seven who had spent six years in a neighbouring country is farcical and looks just spiteful. To take five years to grant a legal separation, not even a divorce so the parties can remarry, seems so out of step with all modern expectations of divorce. Yet this is what has to be accepted in the respect given to another EU member state’s justice system and the overriding priority of forum based on first to lodge

Crucially the Italian court dismissed the wife’s application for recognition in Italy of her Romanian divorce. It said that the proceedings in Romania were commenced after the proceedings in Italy and consequently the Romanian courts had infringed the lis pendens provisions of Brussels II, Art 19, by failing to stay the proceedings. There were cross appeals. It came before the Italian Court of Appeal in March 2014, now seven years after the initial application, which held that notwithstanding the breach of the lis pendens rules by Romania, Italy still should recognise the Romanian divorce. The husband appealed further and in October 2016, now nine years later, the Italian Supreme Court stayed the proceedings and referred the matter to the CJEU.

The following questions were put for a preliminary ruling:

‘Does an infringement of the rules on lis pendens contained in Article 19(2) and (3) of Regulation No 2201/2003 affect only the determination of jurisdiction, with the consequent application of Article 24 [thereof] or, on the contrary, may it constitute a ground for withholding recognition, in the Member State whose court has been seised first, of a judicial ruling made in the Member State whose court has been seised at a later stage, in the light of procedural public policy, having regard to the fact that [that Article 24] refers only to the rules determining jurisdiction contained in Articles 3 to 14 of that regulation and not to the subsequent Article 19 thereof?

Does the interpretation of Article 19 of Regulation No 2201/2003, seen only as a test for the conferral of jurisdiction, conflict with the EU-law concept of “lis pendens” and with the function and purpose of that provision, which is intended to lay down a set of binding rules, reflecting procedural public policy, thereby guaranteeing the creation of a common area characterised by reciprocal procedural trust and fairness between the Member States, within which the automatic recognition and free movement of judicial decisions may operate?’

The CJEU deliberations and decision

The CJEU was placed in a difficult position. On one side, a party and the courts of a member state had ignored or disregarded the fact that another member state had received the proceedings first. To uphold the importance of lis pendens, such a bulwark of EU policy to avoid contradictory and parallel proceedings, surely meant giving no effect to the outcome of the proceedings which were second. It should not be recognised as a matter of public policy for the breach of these EU laws. Yet on the other side of the argument and this aspect apart, there was no other criticism of the Romanian proceedings which had resulted in a final divorce which for all other reasons would be automatically recognised around the EU.

Although divorce was the central issue, it also concerned recognition of the children orders and the maintenance orders made by the respective countries.

It is right to record that the Romanian court argued that there was a difference in subject matter in that the Italian courts were dealing with legal separation and they were dealing with divorce. Accordingly they held there was no lis pendens invoked and therefore it had jurisdiction.  I would suggest it is well-known to all international specialists that the subject matter is the orders regulating the marriage even if different orders would be made. So if there are legal separation or judicial separation proceedings in one EU country, one cannot simply go straight to issuing a divorce in another EU country and ignore those previous proceedings. This may well delay the final divorce hugely, by many years, but this is in EU ethos the respect which should be given to other EU member states. Just because one country has a fast divorce procedure and another country has a very slow procedure, involving initially a legal separation order or similar, does not mean the former should take priority. The whole concept within EU law of “related matters” is widely interpreted, and there are many cases on this topic. So frankly it is hard to see how the Romanian court could have expected to sustain this argument. This is clause 35 of the judgement and the European Court rightly gave short shrift. Clauses 36-37 apply to children and maintenance in a similar way.

So the matter rightly proceeded before the CJEU on the basis that the Romanian court had breached the relevant provisions about the second seized court being required to stay proceedings. The European Court proceeded to look at the importance of the lis pendens rules as the cornerstone for the creation of a genuine judicial area, clause 41. It is intended to prevent parallel proceedings before the courts of different member states and avoid conflicts with those decisions. Hence the mechanism of lis pendens, however much this is offensive in practice and perception in countries, particularly common law countries, such as England and Wales.

The relevant EU laws provide that the second seized should initially stay their proceedings, examine any issues of jurisdiction in their country, distinctly not reviewing matters of jurisdiction in the country first seized as that is a matter for that country, and then if satisfied about the prior proceedings in another country dismiss the second seized proceedings. These rules work well in England and Wales and our family courts are proactive in reviewing matters where it is brought to their attention that there are prior proceedings in another EU member state.

The automatic recognition of orders made in other EU member states, found in EU family laws, is subject to public policy. It is specifically stated that the grounds for non-recognition should be kept to a minimum. So is public policy of non-recognition found in the fact that the divorce arises from one party breaching the duty to stay the second seized proceedings? The CJEU found this depended upon whether the test of public policy may not be applied to the rules relating to jurisdiction, clause 48. It is at this point that the judgment has to be carefully considered because of the technical arguments considered and dealt with by the CJEU at clauses 49-56.

It held that because there is a complete prohibition on the courts of the country first seized from examining why the courts second seized have not declined jurisdiction under Art 24 Brussels II, and corresponding provisions in other EU family laws, an alleged breach of lis pendens by the second seized country does not nevertheless entitle the first seized country to refuse recognition of an order, such as a final divorce, issued by the second seized country even in breach of the lis pendens. This also applies to children and maintenance provisions. To refuse recognition is not possible solely on the ground that national or EU law was misapplied, clause 54. Moreover the grounds of public policy for refusal recognition has to be interpreted strictly. It has to be an obstacle to a fundamental objective of EU law, clause 55.

Accordingly it ruled that Italy must recognise the Romanian divorce. It’s concluding judgment was as follows:

The rules of lis pendens in Article 27 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and Article 19 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 must be interpreted as meaning that where, in a dispute in matrimonial matters, parental responsibility or maintenance obligations, the court second seised, in breach of those rules, delivers a judgment which becomes final, those articles preclude the courts of the Member State in which the court first seised is situated from refusing to recognise that judgment solely for that reason. In particular, that breach cannot, in itself, justify non-recognition of a judgment on the ground that it is manifestly contrary to public policy in that Member State.

The consequences

If the UK leaves the EU with no deal, this is mostly irrelevant. We will have the end of racing to court as a criteria for forum and proceed in all cases, EU and non-EU, on the basis of closest connection. But if hopefully there is a sensible EU deal, EU law will continue to apply for at least a couple of years. This CJEU decision will apply in England. So even if England were to have the proceedings lodged first, it might find that another member state in effect ignores the proceedings and grants its own divorce.

This sort of scenario has happened before. In a leading Russian case where the English High Court had granted a Hemain order i.e. a personal injunction restraining a party from proceeding with their divorce proceedings abroad, the Russian petitioner husband had ignored the English court and proceeded with the Russian divorce and obtained the divorce in that country with relatively meagre financial provision for the wife. But in a non-EU case, where this sort of behaviour occurs, England has the opportunity of financial provision after a foreign divorce under Part III MFPA 1984. But this will not be possible in any EU case where alongside the making of a divorce, the country second seized also makes a maintenance order which England would be obliged to recognise. This would be a very unsatisfactory state of affairs.

England in its common law jurisdiction has the concept of an anti-suit injunction, in which a country makes an order against a party proceeding with a similar action in another country. It can be permanent or temporary. The Hemain order made from time to time in the family courts is a temporary anti-suit injunction. But first, most EU countries, indeed most countries around the world, do not have this concept and legal power. Secondly there is resentment if England seeks to exercise it. Thirdly it has been specifically vetoed by the EU in the Turner v Grovit CJEU decision of 2004.

If there are proceedings in England in which jurisdiction is being considered, and there is a suggestion that the other party is rushing ahead with the proceedings in his or her preferred country, precisely what happened in Hemain itself, the English court has several remedies. It can grant a temporary anti-stay injunction against the other party and requiring them not to proceed with the other court action until jurisdiction is sorted out in England. If it seems this is being ignored, the English court has the power in exceptional circumstances to expedite the pronouncement of the first decree and abridge time for the pronouncement of the decree absolute i.e. less than six weeks. In this way it overcomes the attempts of the other party to frustrate the English proceedings. But this would be unacceptable, probably legally unavailable, in an EU case.

There must inevitably be some note of the timescales in this case. However meritorious may be the much acclaimed EU attempt to create one common judicial area across what would have been 28 member states, each giving complete and utter respect to the other, it really falls down when there is such a wide discrepancy in timetables. Where it takes five years from a court application to obtain a legal separation, and longer thereafter to obtain a divorce, and it takes six years to deal with child arrangements and nine years to be considered by a Supreme Court, fundamental questions must be asked about how other, relatively fast judicial systems, specifically including England and Wales and other countries in the UK, can operate side-by-side and allow these woefully slow countries to work out arrangements. Whilst sometimes undue speed can be unhelpful therapeutically for couples, or one spouse, coming to terms with the breakdown of a relationship, such long delays in resolving matters is invariably to the utter prejudice and damage to the couple concerned and their children. The EU has in various decisions condemned these long delays but they remain and nothing seems to be changing on the evidence of this case

So in conclusion whilst it is understandable how the CJEU came to its final decision, putting the importance of recognition of orders of other member states above the consequences of breaching EU forum jurisdiction laws, it nevertheless produces a very unsatisfactory outcome. It leaves the veritable bad taste. A country which pays little or no regard to the laws governing interaction between countries and then manages to succeed in having its own judgements upheld instead of those of the country properly and legally seized.

It really does mean the loser in the race to court actually wins the race.

David Hodson OBE is a co-founder and partner at The International Family Law Group LLP, London.  He is an English solicitor, arbitrator and mediator and also an Australian qualified solicitor, and sits as a part-time family court judge at the Central Family Court. dh@davidhodson.com

Note: to improve readability and accessibility, this article does not contain citations, statutory references or other reference detail.


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