(Family Division; Singer J; 10 February 2006)  FLR (forthcoming)
Divorce proceedings had been started in France and England on the same day. The husband contested the jurisdiction of the English court. The French court considered itself seised second and stayed proceedings until after the English court had ruled on jurisdiction. The husband's French appeal against this decision was pending. The English jurisdiction hearing had been listed, but would not be heard for some weeks. The wife applied in England for maintenance pending suit. The husband opposed this on the basis that his appeal was highly likely to succeed and the matter should be left to the French courts. He also argued that because of the wife's failure to file a certificate of marriage with her divorce petition, the petition was a nullity. It had been confirmed that where marriage certificates were not available with the petition, a practice had developed at the Principal Registry of seeking an undertaking as to the future filing of the marriage certificate rather than obtaining court permission as required by the rules.
The English court was not entitled to predict the outcome of the French appeal, as the husband had requested, and could not proceed on the basis that the husband's appeal was highly likely to, or should, succeed. Once a competent court of another jurisdiction had concluded that it was not first seised, then so long as that order remained in force the courts of both countries should operate on that basis. Given that the French court for the time being considered its proceedings stayed, the English court was bound to consider awarding maintenance pending suit in order to ensure that the wife was not deprived of remedy in either court. The wife's failure to file a certificate of marriage with her petition did not render the petition invalid, being merely a minor procedural irregularity. This was an exceptional case, given the wife's need to meet ongoing costs liabilities if she were to be able to bring her case before the court. The balance of unfairness would fall more heavily on the wife than on the husband if the order were declined.