(Court of Appeal; Thorpe and May LJJ and Bennett J; 12 July 2007)
The wife issued divorce proceedings in England on the same day that the husband issued divorce proceedings in France. The French court concluded that the English petition had been served earlier on the day in question, and therefore that the French court was seized second; the husband's first appeal against that decision was dismissed by the French appeal court. The French proceedings had accordingly been stayed, applying Brussels II Revised. The English court accepted jurisdiction to hear the divorce petition but, having been informed by the husband that he intended to take his appeal against the French decision that France was seized second to the court of highest authority in France, ordered that if a decree nisi was pronounced it should not be made absolute until either the husband's final French appeal was determined, or a judge of the Family Division so ordered. When the decree nisi was eventually pronounced by the English court, the judge expressed concern about the husband's delay in prosecuting the French appeal and the husband gave assurances that he would proceed with it as fast as possible. Over six months later a judge of the Family Division granted a decree absolute to the wife, rejecting the husband's argument that the court ought to wait until determination of the French appeal. The judge based her decision on the apparent weakness of the husband's case on appeal, the lack of an opinion from a French lawyer setting out the husband's realistic prospects of success, the lack of any other evidence on the husband's prospects of success, and the fact that the husband was in breach of the assurances given at the earlier hearing on the speedy prosecution of the appeal. In fact, the husband had not lodged his French appeal document until 6 days after the relevant time limit.
The English judge had been entitled to grant the decree absolute. The legal consequence in France of the decree was not known; it was a matter of speculation. The onus had been upon the husband to bring evidence not only as to his prospect of success in the French appeal, but also to establish the consequence in French law of an English decree absolute: he had failed to do so. The judge had been entitled to place great moment on the husbands disregard of his obligations in France coupled with his seeming contempt for the English court in his breach of assurances given to a judge of the Family Division. The process was still live in France, and it was for the Cour de Cassation to decide the issue of seisin; if, following the French appeal, the English court turned out not to have been first seized, some of the orders made by the English court, including perhaps the decree absolute, might logically be of no effect.