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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, ... - page 5 / 12

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different member states. There is no discretion. The rule is absolute. The courts in the place second seised must decline jurisdiction.

The time of seisure depends on whether the first step in an action is to lodge a document instituting proceedings in court, or to serve the document. If the document requires to be lodged first, then the time of lodging is the moment the court is seised, provided the document is then served. If service comes first, then service represents the seizure of the court, provided the document is then lodged (article 16). The effect of Brussels II has not been altogether helpful. It means that in EU cases, there may be a rush to commence proceedings, in order to secure the application of what are perceived to be the most helpful rules on divorce or ancillary matters.

Article 20 allows a court to take provisional, including protective, measures in respect of persons or assets, even where the courts of another member state have jurisdiction as to the substance. This may not be broadly construed. In Wermuth v Wermuth [2003] 1 WLR 942 a divorce action was commenced in Germany. Before the German court had considered whether it was first seised, the wife applied to the English court for maintenance pending suit (equivalent of interim aliment), and was awarded £150,000 pa. The German court did in fact assume jurisdiction and the husband appealed the English order. His appeal was allowed. The Court of Appeal held that the order to pay a sum for an indefinite period was an unwarranted invasion of the proper function of the German judge, who was the judge first seised.

The seisure of a court means that the court will apply its own rules to the divorce, and to any ‘ancillary’ matters. In Scotland this means that Scots law will be applied. Scots law relating to ancillary orders on divorce is not at present in a particularly happy state. The Domicile and Matrimonial Proceedings Act 1973, section 10 provides that a court with jurisdiction to entertain a divorce may grant ancillary orders. The orders the court might make were helpfully listed in schedule 2. The Children (Scotland) Act 1995 amended section 10 to confer a broad jurisdiction in relation to children. The amendment is misprinted in the Parliament House Book version of the 1973 Act. Taking the accurate version of the amendment from schedule 4 of the Children Act 1995, it can be seen that section 10 does not now refer to schedule 2, which is left ‘hanging’. It is unlikely that Parliament in the 1995 Act

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