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Husband appeals against the assumption of jurisdiction by court in England where the wife had previously petitioned for judicial separation in Italy. Question was raised as to whether the order of the Italian court which declared the wife’s petition void had the effect of bringing those proceedings to an end. Appeal dismissed.

The husband was an Italian citizen and the wife British but of Italian parents. The parties had met in England in 1979 and married in England in 1988. In February 1998, the parties had signed a post-nuptial agreement in Italy apparently restricting the size of award the wife could receive in the Italian courts. 

On 11th June 2008, the wife issued a petition for judicial separation in Italy. On 21st August, she issued a petition in England. On 9th October 2008, her petition came before the Italian court. The record of the court of that date shows that the wife did not attend, the petition was declared void and the proceedings were ordered to be shelved. On 10th February 2009, the husband's petition for judicial separation in Italy was issued. 

Hedley J considered the timings of the competing applications and noted that it was accepted that under Article 3(1) Brussels II Revised either jurisdiction could be invoked. However, since the husband's petition was clearly issued after the English proceedings, the key question was what was the effect of the order made in the Italian court in October 2008. 

Expert evidence was heard stating that such an order brought the case to an end but that an application to revive the order made within 12 months could be entertained. 

Hedley J ruled that the effect of the order of the Italian court was to bring the proceedings to an end and that unless and until an application for revival was made, the court in Italy was no longer seised of the matter for the purposes of Article 19. The English court was thereby correct to assume jurisdiction.

The court further considered the position as to the parties' habitual residence and ruled that the wife was habitually resident in England.

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Published on our website on Dec23, 2010