20 October 2016
Consideration of whether delay in serving the divorce petition had been tactical
Facts
- W issued her divorce petition on 26 October 2015 and took no steps to serve it until 19 January 2016. Service was achieved on 27 February 2016.
- H accused W of deploying the tactic of filing a petition but holding it in secret and not serving it until it suited her.
- Article 16 of Brussels II provides that a court is deemed to be seised 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.
Held
- On the basis of the above, Mostyn J held there is actual seisen on issue, but that seisen can be defeated if it is later shown that the applicant failed to take the steps she was required to take to have service effected on the respondent.
- In this case, W had acted with reasonable promptitude and hence the English court was first seised.
- The default position for serving a divorce petition is that the petitioner will serve unless she asks the court to do so.
- There is no time limit in which to serve the petition under r 7.8, FPR 2010.
- A strategic petition which is filed and left to hibernate for years whilst the parties carried on with their marriage is likely to be struck out as an abuse or for disclosing no reasonable grounds.
- However, subject to the above, the only formal requirement is that a petitioner must serve the petition at an unspecified point in the future. A requirement of acting reasonably promptly can be inferred, and promptitude can be informed in a broad way by the extendable time limits in CPR 7.5.
