In divorce proceedings, when we can foresee an international jurisdiction dispute between two or more jurisdictions, the moment service of the divorce petition is effected may be crucial.
The importance of service is clearly stated in Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility (Brussels IIBis). Its article 16 establishes that a court shall be deemed to be seised “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.”
This is particularly important in situations of lis pendens between Courts of different Member States. Article 19 Brussels II Bis states that when divorce proceedings between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. This rule is also applied to legal separation and marriage annulment.
The link between these two articles is evident. The Court first seised shall be competent to decide on its own jurisdiction, provided that all the necessary steps to effect service on the respondent have been taken.
Although it is not explicitly mentioned on Brussels IIbis, we can assume that there is a potential risk that the court first seised risks the “privilege” to decide on its own jurisdiction if the applicant has been negligent when effecting service on the respondent. Consequently, all necessary steps must be taken when effecting service, even if that implies not giving prior notice to prevent the respondent taking measures to avoid service and regardless of the fact that this strategy may be seen as aggressive or counter-productive to reach an agreement.
A further warning is necessary. Not only it is required ensure that all steps are taken to effect service, but also that service is carried out appropriately. To that end, it is necessary to be aware of the existence of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000. This Regulation’s main principle is that service shall be effected in accordance with the national law of the Member State where service is to be effected. Therefore it is essential to ascertain the Member State’s legislation regarding service of judicial documents before proceeding with service. The Regulation 1393/2007 contains several service methods but not all are accepted in all Member States. For example, under English procedure rules service of proceedings effected directly on the respondent through the applicant’s solicitors, whereas this is completely unthinkable under Spanish law.
In conclusion, the two golden rules to remember in family proceedings with an international element are: (i) importance of being first in time but also to take all necessary steps to effect service, and (ii) that service is affected in accordance with the law of the Member State where service is to take place.