In the recent divorce jurisdiction case of Giusti v Ferragamo  EWCA CIV, the Court of Appeal had to consider a wife’s English divorce petition which had previously been seised on the basis that proceedings had already started in Italy.
Giusti v Ferragamo
The parties were both Italian nationals. On 4th May 2012, the husband issued judicial separation proceedings in Italy, which were a necessary first step to divorce. A separation order was made on 4th December 2015. On 14th March 2018, the wife’s appeal of the Italian separation order was dismissed and the husband commenced divorce proceedings in Italy on 15th March 2018.
In the meantime, the wife had issued divorce proceedings in England. The first petition was dated 16th January 2018 and the second 7th March 2018. The earlier petition was never served on the husband and the second was served in April 2018.
The wife applied for the stay or dismissal of the husbands Italian divorce proceedings on the basis the Italian Court was second seised (the Italian divorce proceedings having been issued on 15th March 2018). The husband cross-applied for a stay of the wife’s English divorce proceedings on the basis the judicial separation proceedings (issued 4th May 2012) seised jurisdiction in Italy for the separation and divorce proceedings.
At first instance, Francis J found the separation proceedings in Italy were on-going and Italy remained first seised. His decision was based on his view of the declarations and rulings made by the Italian Court. He therefore stayed the wife’s English divorce petition and dismissed her application for an single joint expert to be instructed to provide an opinion on Italian law. The wife appealed.
Court of Appeal decision
Giving the lead judgment of the Court of Appeal, Moylan LJ found that Francis J did not have sufficient evidence to decide whether or not the Italian Court remained first seised as from 14th March 2018 but nor was there sufficient evidence to determine that Italy did not remain first seised.
The answer was one of Italian law. Although there was a lack of clarity about what issues the Italian Court would be determining at the next hearing, it was likely that the wife’s application in Italy to stay or dismiss the husbands petition would require the Italian Court to determine the relevant issue of whether the Italian Court remained seised. Despite the delay that would occur in the Italian Court determining the issue, the English Court should defer to the Italian Court to let it determine whether it remained seised or whether or not the proceedings had lapsed on 14th March 2018 and therefore only the English Court was seised at that stage.
It did not make sense for the English Court to consider possibly conflicting evidence from Italian lawyers when an Italian Judge could determine the issue. Moylan LJ went onto comment that if it is unclear which Court is first seised, it should not be left to chance as to the Court that decides the issue. In most cases, the Court that appears to be first seised is likely to make the decision. However, even if this is unclear, the decision should be based on which Court is better placed to determine the issue, and on assessing the course of action that better supports the objectives of Brussels II Regulation (BIIR) 2201/2003. A primary objective is to avoid parties engaging in proceedings within the scope of BIIR in more than one jurisdiction.
As the English Court was not determining which Court was first seised, the wife’s divorce petition was adjourned, as was the husband’s application for its stay or dismissal pending the Italian Court’s determination of the wife’s application for the stay or dismissal of the husband’s petition.
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Layla Babadi is a specialist family law solicitor at Nelsons.
If you need advice on any foreign divorce related matter or have any other family law related queries, please contact Layla and she will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide.