Court of Appeal: Catja Thum v Oliver Thum
12 July 2018
The Court of Appeal today dismissed Oliver Thum’s appeal and ruled that his wife Catja Thum’s divorce and related financial claims should proceed in the English court and not, as Dr Thum had argued, in Berlin.
Giving judgment for the Court of Appeal Lord Justice Moylan said:
“The outcome to this appeal is found by determining (i) what steps under English law a petitioner is “required to take to have service [of a divorce petition] effected” and (ii) whether the wife has failed to take those steps. As set out above, there are no specific required steps. There is only the generally stated obligation to serve. Accordingly, the wife in this case has not failed to take any required step…In my view, the appeal must, therefore, be dismissed.”
Commenting on the judgment Catja Thum’s solicitor Davina Katz, Head of Family at Schillings, said:
“My client is delighted that the Court of Appeal has ruled in her favour and relieved that her divorce will now proceed in the English court. It has always been my client’s wish to have her divorce and financial claims dealt with by the English court because England is the place where she and her children have made their home and she is confident that the English court is best placed to deal with her claims fairly. Her husband’s attempts to have the proceedings heard in Germany have resulted in two years’ delay and untold stress for Mrs Thum but her principled stance has now been vindicated. She hopes that the proceedings may now be concluded swiftly.”
Notes to editors
The parties to the appeal were Dr Oliver Thum who is the husband of Mrs Catja Thum. Both parties are German nationals who moved to London with their children in 2009. Dr Thum returned to live in Germany in 2015 following their separation and in October 2015 Mrs Thum petitioned for divorce in London. Mrs Thum and the children continue to live in London.
Mrs Thum did not take any steps to serve the petition on her husband until 19 January 2016 and did not actually serve it on him until February 2016. In the meantime Dr Thum filed a divorce petition in Berlin on 19 January 2016 and this petition was served on Mrs Thum in March 2016, shortly after her petition was served on Dr Thum.
Dr Thum then applied to the English court for the dismissal of Mrs Thum’s divorce petition and related financial claims, arguing that under the rules governing the priority of competing divorce petitions in the European Union, his German petition should have priority and that Mrs Thum’s financial claims should be heard in Berlin, not London.
In October 2016 Mr Justice Mostyn refused Dr Thum’s application and ordered that the English and not the German court had jurisdiction to hear the proceedings.
Dr Thum appealed to the Court of Appeal and the appeal was heard on 15 March 2018.
The Court of Appeal has dismissed Dr Thum’s appeal and ruled that Mrs Thum’s divorce and related financial claims can be heard in the English court on the basis that the English proceedings commenced by her have priority over the competing proceedings commenced by Dr Thum in Berlin.
The divorce proceedings and related financial claims will now be dealt with by the High Court in London.
Issues in the appeal
The central issue in the appeal concerned the meaning of Article 16 of the Brussels II Revised Regulation (Council Regulation (EC) No. 2201/2003 of 27 November 2003). The Regulation is intended to provide a uniform set of rules throughout the European Union to determine where and when EU nationals are entitled to commence divorce proceedings and which proceedings should have priority in the event that spouses issue competing divorce proceedings in different EU countries.
In this case Mrs Thum was able - in accordance with the Regulation - to issue a divorce petition in London because she was habitually resident in London and had resided here for over 12 months when the petition was issued. Dr Thum was able to issue a petition in Berlin on the basis that that he was habitually resident there and, as a German national, had been resident there for more than 6 months.
Article 19 of the Regulation provides that where there are two competing sets of proceedings in different countries the proceedings should take place in the court first “seised” (i.e. the court where the first petition is issued) and the court second “seised” should decline to hear the case.
Article 16 says:
“A court shall be deemed to be seised:
(a) At the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the Respondent;”
In other words, in the case of two competing petitions, the court where the first petition was filed will have priority/ jurisdiction unless the person who files that petition fails “to take the steps he was required to take to have service effected on the [other party].”
Mr Thum argued that Mrs Thum had failed to take the steps necessary to effect service because she did nothing to effect service of her petition for over two months and did not successfully serve the petition until after Mr Thum had issued his competing petition in Germany.
In the High Court Mr Justice Mostyn held that Mrs Thum had not failed to take the steps required to have service effected because under English law there is no time limit for serving a petition and Mrs Thum had eventually served the petition, albeit a little over four months after the petition was filed at court. He held that Mrs Thum was under an obligation to serve with “reasonable promptitude” and she had not failed to comply with that obligation.
Mr Thum’s appeal
On appeal it was Mr Thum’s case that Mr Justice Mostyn was wrong to interpret Article 16 to mean that the only steps Mrs Thum was required to take to have service effected were the steps required under domestic law, the only requirement under domestic law being a requirement to serve the petition on the respondent within an unspecified time. It was said that that interpretation would produce an absurd result because it would allow a petitioner to file a petition to secure jurisdiction, keep it in a drawer for years until serving it only in response to a petition served by his spouse. Mr Thum argued that the court should adopt an interpretation which gave effect to the purpose of Article 16 which was that a petition should not only issue her petition but also serve it.
Court of Appeal’s decision
Dismissing Mr Thum’s appeal, the Court of Appeal agreed with the approach adopted by Mr Justice Mostyn.
The question of whether Mrs Thum had failed to take the steps required of her to effect service was a question solely of whether she had complied with the domestic law; it was not a question of applying EU law or giving effect to the purpose of the EU Regulation.
Under domestic law the only requirement in the Family Procedure Rules was that the petition must be served on the respondent. The rules do not specify the time within which service must be effected and it was not open to the court to imply a requirement to effect service immediately, “as soon as possible” or “as soon as practicable”. To do so would create uncertainty about which of two competing applications should take priority under the Regulation which was the very thing the Regulation was supposed to avoid.
The court commented that the absence of any time limit for service of a petition was “not entirely satisfactory” and proposed that the Family Procedure Rules Committee be invited to consider whether the rules should be amended to include a time limit.
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