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Date:20 APR 2007

(Court of Appeal; Thorpe and Collins LJJ and Munby J; 20 April 2007)

Less than a year after the English couple moved to Spain, the husband filed for divorce in Spain, but did not invoke the financial jurisdiction of the Spanish court. Two days later the wife filed her divorce petition in London. The wife's English petition was stayed, under the provisions of Council Regulation (EC) 1347/2000 (Brussels II); the wife duly participated in the Spanish divorce proceedings, but did not apply in Spain for financial relief. Although at the hearing of the divorce the husband proposed a financial settlement of about £7.55m, the Spanish court did not make an order because no claim had been made in the petition or the answer. The husband later made an application to the Spanish court for adjustments of wealth or assets, still offering the wife assets to the value of about £7.55 million. Meanwhile in England the wife was granted permission ex parte to apply for financial relief after an overseas divorce, under Matrimonial and Family Proceedings Act 1984, Pt III. Subsequently the Spanish court held that it did not have jurisdiction to entertain the husband's adjustments of wealth application, and the husband appealed. In England, the husband failed to have the ex parte Pt III permission set aside, and appealed, arguing that his application in Spain, still pending appeal, was an application relating to maintenance, ancillary to the divorce, and therefore entitled to priority under Council Regulation (EC) 44/2001 (Brussels I), and also that permission under Part III was bound to be refused because the wife had not sought ancillary relief in the Spanish divorce proceedings, although she could have done so. No date had yet been fixed for the husband's Spanish appeal. If the Spanish court were to consider the couple's financial claims, it would do so by applying English law, because both were English nationals. By the time the case was heard by the Court of Appeal, the total spent by the parties in the two jurisdictions to date was about £1.5 million.

The husband's Spanish application had related not to maintenance, but to division of the wealth or assets in which the couple had a claim, and therefore was not governed by Brussels I. The court expressed the view, obiter, that although under Brussels I a judgment was final even if an appeal was pending, Art 27 of Brussels I, giving priority to the court first seised, applied until the proceedings in the court first seised were finally determined in relation to its jurisdiction, that is until any appeal had been concluded. When granting the wife permission to apply under Pt III, the judge had been entitled to treat the connection with the English jurisdiction as overwhelming and had given proper weight to the wife's failure to make an application in Spain, which was not the only or automatically determinative factor. The judge's approach had, if anything, been unduly favourable to the husband and the court considered that it was highly relevant that the parties' connections with, respectively, England and Spain, were such that the Spanish court treated the law of England and Wales as being the relevant governing law. In cases involving overlapping proceedings in different jurisdictions there should be someone on each team co-ordinating the proceedings, with an understanding of what was going on, able to inform both courts of the progress in the other jurisdiction.