Weiner v. Weiner [2010] EWHC 1843

Weiner v. Weiner [2010] EWHC 1843


Whether it is permissible to serve documents initiating divorce proceedings on a Sunday and the effect, if any, of Sunday service on the court's jurisdiction under Brussels II Revised.
The Applicant husband and Respondent wife were both Swedish nationals. They had (with their two children) been habitually resident in England for about fifteen years. It was common ground that under Article 3 Council
Regulation (EC) No. 2201/2003 [Brussels II Revised] both the English and
Swedish Courts had jurisdiction to hear the matter. Under Article 19
the court first seised would take priority.

The wife lodged her petition at the Principal Registry of the Family Division on 17 January 2008. This was served on the husband on Sunday, 27 January 2008. The parties reconciled in April 2008. The reconciliation failed and on 12 November 2009 the wife lodged a supplemental petition. This was served on the husband on Sunday, 15 November 2009 and re-served on 18 November 2009. The husband lodged a petition with the Swedish court on 16 November 2009.

The husband claimed that County Court Rules (CCR) O7, r3 provided that no process shall be served on a Sunday and thus the wife's service was fatally defective and the Swedish courts were first seised.

Holman J held that CCR O7, r3 continued to apply to divorce proceedings and that petitions for divorce cannot be served on a Sunday. Nonetheless he judged that the matter was an 'irregularity' under CCR O37, r5 and declined to set aside the proceedings, stating: "in my view this was, on both occasions, a minor, unintentional, completely harmless infraction of a now archaic, anomalous, pointless and technical rule which the English court should, and would, overlook for all purposes".Holman J continued that for the purposes of Article 16.1 the court is seised of the matter when the required documents are lodged, subject to the proviso that there has not been a subsequent failure to take the required steps. In this case there had been no such failure.

Therefore the English courts were the first seised of the matter. The case would be transferred back to the PRFD for the divorce proceedings to continue in the ordinary way.

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