The Irish High Court in the recent case of MH v MH  IEHC 771 have decided that the English courts are to have jurisdiction over the breakdown of a couple’s marriage after the separated spouses each presented a petition, the husband in Ireland and the wife in England.
The couple were married on 26 June 1982. The husband applied for judicial separation in Ireland and the wife applied for divorce in England on the same day, namely 7 September 2015. The husband’s solicitor lodged his application at 2:30pm in the Irish High Court’s Central Office. The wife’s solicitors posted her divorce petition by DX to the Divorce Centre in Bury St Edmunds, in accordance with the recent changes to procedure thereof. It was said by the wife’s solicitors that the petition recorded being received by that Divorce Centre also on 7 September. The wife’s divorce petition was not issued until 11 September 2015, whilst the husband’s application for judicial separation was issued on 7 September 2015.
The court had to therefore decide which court had jurisdiction by, firstly, interpreting whether the word “lodged” in the relevant phrase “is lodged with the Court” in Article 16 of the Brussels II Revised Regulation EC 2201/2003 meant the time of delivery or the time of issue of an application. If the former, it would be important to establish what time the wife’s petition was received by the relevant English court in order to determine which application was received first in time and which court was first to have jurisdiction. This is because, by virtue of Article 19 of the Regulation, the Court who received the application last has to stay its proceedings and ultimately decline jurisdiction in favour of the Court first “seised”.
The evidence supporting the wife’s case that her application was delivered first in time included an affidavit from a Bury St Edmund’s divorce administrator confirming that the DX is usually delivered to the court at 7:45am and that ordinary post normally arrives around the same time. That affidavit also confirmed that the staff assigned to open the DX and post normally begin doing so at 8:00am. The administrator said that the opening usually takes 2-2.5 hours. In another affidavit on behalf of the wife, an employee from the DX exchange group confirmed that on 7 September 2015 the DX was delivered to Bury St Edmunds Family Court at 7:53am, supported by a record of proof of delivery.
To interpret the word “lodged” the Court looked at the definition in the procedural rules of the Superior Court of Ireland, which defines it as “file, leave with or at, deliver or transmit…”, and which stated that the dated of lodgement “shall, unless the contrary is proven, be deemed to be the date recorded in any cause book or other record kept…in the office”. The Court also referred to case-law which supported the view that the lodgement date is the date on which the Court receives the relevant document, not the date on which the Court issues the same. Abbot J therefore decided that “lodged” is to be interpreted as the time of delivery to or receipt by the Court. Next was to determine what time the wife’s divorce petition was received by the English court. The Irish High Court inferred from the aforementioned affidavits and record of delivery that the wife’s divorce petition was received on 7 September 2015 and found that on a balance of probabilities the wife’s divorce petition was received, date stamped and stored for further processing by at least 10:30am.
The Court therefore found that the English court had jurisdiction and stayed the proceedings in Ireland. The Husband is currently appealing this decision and the Irish Court of Appeal are due to hear the case this spring.
The decision of the Irish High Court came as a shock to many family practitioners, as it was commonly thought that the time and date of issue was the determining factor of a jurisdiction race, especially given that the time of issue is recorded on the face of a divorce petition in England and Wales.
The effects of this decision, if upheld on appeal, will be extensive. It would affect divorce law in the UK and throughout Europe. Gone will be the days of waiting in a queue in a panic at a Court office to get a petition issued, frantically looking back and forth at a clock on the wall and willing the people being seen to hurry. Instead, it will be a frantic race to have a member of court staff date stamp and confirm the time of that the petition has been delivered to the relevant Court because it will be imperative for practitioners to obtain evidence of delivery and/or receipt of the same. This is based on the assumption that there is a counter-service or collection box in all divorce centres; if there is not, that will need to be rectified by the defaulting courts immediately so as not to disadvantage petitioners.
We will stay tuned.