Ruling in Irish High Court could see a new approach to international divorce cases
MH v MH concerned a separating couple. The husband lived in the Republic of Ireland and the wife in England. On September 7 last year, the husband filed an application for divorce at the Court Office in the Irish capital, but his estranged wife had already presented her corresponding documents at the English divorce centre in Bury St Edmunds earlier the same day.
The judgement, delivered by Mr Justice Henry Abbott on 2 December 2015, decided that "lodged" for the purposes of Article 16.1(a) of Brussels II Revised (Regulation (EC) No. 2201/2003) meant delivery to the court and not issue, as had previously been understood by practitioners in England and Wales.
The ramifications of the judgment, if upheld, could be widespread. It will fundamentally change the practice by which family lawyers seek to gain priority of jurisdiction on behalf of their clients where there is a risk that the other spouse will issue elsewhere intra-EU.
Current legal regulations have meant divorce lawyers in their clients’ preferred jurisdiction rushing to file their divorce applications first, before their estranged spouses do so in their own country of residence, in order to try and ensure that their own petition is issued first.
In MH v MH, the wife’s lawyers had filed their application at the Bury St Edmunds court before the husband did so in Dublin, but the petition itself was not issued by the court until after the husband’s in the Irish courts.
This is important because until now, delivery was not enough. The petition for divorce had to be issued otherwise the other spouse could steal in somewhere else within the Union and claim priority under Article 19.
Justice Abbott’s decision means that issuing itself was not needed. Only receipt or possibly delivery is paramount. This means family law firms will need to show evidence of delivery and/or receipt.
The husband has already appealed Mr Justice Abbott’s ruling. A hearing is expected in the spring.
Subject to a successful appeal, the decision has significant implications in practice.