Under article 19 of Brussels II Regulation (BIIR) 2201/2003 it provides:
“Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before Courts or different member states, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established”
In a scenario where overseas divorce proceedings are issued and then a party seeks to issue proceedings in the jurisdiction of England and Wales, then the first divorce proceedings take precedence. Under BIIR there is no discretion and the rule is absolute. The second Court must decline jurisdiction.
Seizure of overseas divorce proceedings – Case law
A recent case (E v E [2015] EWHC 3742) clarifies that when an overseas Court has seized jurisdiction first, then the English Court must dismiss all English proceedings rather than just decline jurisdiction.
In relation to EU proceedings there may be a “rush to the door of the Court” in order to secure the application in the jurisdiction which is perceived to be the most helpful or beneficial in relation to divorce and financial matters for that party.
Financial matters
If you find yourself in a situation where proceedings have already been issued overseas, thus it is not possible to issue divorce or annulment proceedings in England, then it is still possible for financial matters to be dealt with by way of an application to the English Courts for financial relief after an overseas divorce under section 12 of the Matrimonial and Family Proceedings Act of 1984.
This Act provides that where a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated by means of judicial or other proceedings in an overseas country and the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales, then either party to the marriage may apply to the Court in the manner prescribed by the rules of the Court for an order for financial relief under this part of this Act. However, if after a marriage has been dissolved or annulled in an overseas country and one of the parties to the marriage remarries then that party shall not be entitled to make an application in relation to that marriage.
How Nelsons Can Help
If you need advice on any foreign divorce-related matter or have any other family law-related queries, please contact a member of our team on 0800 024 1976 or contact us via the online form. We will be happy to discuss your circumstances in more detail and give you more information about the services that Nelsons family law solicitors can provide.