(Court of Appeal, Rimer, McFarlane, Vos LJJ, 28 January 2014)
When the marriage broke down after 3 years the wife issued divorce proceedings in England and the husband arranged for divorce proceedings by mutual consent to be issued in Spain. During the marriage the parties lived in Spain and upon separation the wife returned to the UK. A hearing took place to determine which set of proceedings took precedence in accordance with BIIR.
In the High Court the judge determined that the English proceedings should be stayed on the basis that the wife had agreed to abandon the English proceedings and she was now estopped from submitting that those proceedings were still extant. The wife appealed.
The power to stay divorce proceedings by virtue of the Divorce and Matrimonial Proceedings Act 1984 was subject to the provisions of BIIR. Art 19 of BIIR was clear that where there were two sets of divorce proceedings in Member States which were parties to BIIR, where the jurisdiction of the court first seised was established, the court second seised would decline jurisdiction in favour of that court. Further, the wife was not estopped from asserting the English jurisdiction as BIIR inhibited such a process. The judge was wrong to stay the proceedings. The wife's appeal was allowed and her divorce petition reinstated.