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07 November 2016

Divorce Procedure Thum –v- Thum (2016) EWHC 2634 (Fam)

On 21st October Mr Justice Mostyn, at the Family Division of the High Court, considered whether a wife had unreasonably delayed serving her divorce petition on her husband. The husband claimed that his wife had done so with the aim of achieving a tactical advantage. Why so?  The European Union regulations dictate the jurisdiction in which a family case is to be heard.  In broad terms, if a spouse wants to start divorce proceedings in England she or he must be linked by habitual residence and/or nationality.  Mrs Thum had started the divorce in England but had not served the husband for several weeks.  The husband started his divorce petition in Germany after the wife had started hers in England.  Both countries had jurisdiction but “first past the post” would settle where the divorce was dealt with.  That is significant because, by reputation, the English discretionary system dealing with financial claims on divorce often favours the Claimant wife.  There is nothing in the judgment about the financial resources of the parties but presumably serious money is at stake because both sides went to Court armed with QCs.

The husband argued that the wife’s divorce petition should be stayed, so that his could proceed, because of the wife’s delay.  Her petition was issued by the court on 26th October 2015 but the husband was not actually properly served until he was handed the divorce papers at Heathrow Airport on 27th February 2016, some four months and one day later.

Had the wife got it wrong?  In family proceedings the petitioner should serve the divorce papers on the Respondent further to rule FPR 6.5(1).  The Petitioner can ask the court to serve the papers and frequently the court does so almost by default.  The family rules do not give any time limit within which divorce papers can be served.  So, a Petitioner might ask the court to issue a petition and have the papers returned for service but then simply put them aside.  If the Petitioner were then to later rely on those divorce papers and serve them there may be a difficulty.  The petition might be struck out as an abuse of process.  Would the Petitioner be able to rely on that petition if, after issuing the petition, she or he had continued living with their spouse who might be unaware that a divorce was underway?  Could she then say that the marriage had irretrievably broken down?

In this case the court found that the wife had done the proper thing in asking the Foreign Process Service to serve the husband but unfortunately there was an error regarding the husband’s address that lead to delay.  Although the husband started his German divorce on 19th January 2016 the wife had done enough as far as the court was concerned.  The husband failed on his application to have his wife’s petition stayed.