Lis Pendens in divorce matters: Mandatory stay according to Art. 19 Brussels II bis even when the respondent is in default?
Cross border divorce cases appear frequently before Greek courts. However,
lis pendens issues are rarely emerging in the hearing. It is widely accepted
that the court second seized is obliged to stay proceedings until the court
first seized decides on its jurisdiction. Usually this is the case when the
respondent invokes Art. 19 Brussels II bis. The Gytheion First Instance Court
was confronted with the question, whether it should stay proceedings, although
the respondent was in default.
Gytheion First Instance Court Nr. 7/2017,
unreported
THE FACTS: The parties are a Greek national
(the claimant) and his Polish wife (the respondent). He filed a divorce action
on March 7, 2016. The claim was properly served to the spouse in Wroclaw, Poland. The
hearing took place on January 11, 2017. The respondent did not appear. During
the proceedings, the Judge examined the claimant’s witness, who at some point
referred to a claim filed by the respondent in Poland. The Judge asked the
claimant’s lawyer to produce the foreign claim to the court, which eventually
was submitted within the term of three days following the hearing in accordance
with domestic Civil Procedure Rules.
THE RULING: The court began by a thorough
analysis of Art. 19 Brussels II bis and the respective case law of the CJEU [C‑489/14, Α v Β,
ECLI:EU:C:2015:654; C‑173/16, M. H. v M. H., ECLI:EU:C:2016:542; C‑296/10, Bianca Purrucker v Guillermo
Vallés Pérez], while at the same time it
referred to case law published on the interpretation of Brussels I Regulation,
which is to be applied by way of analogy [C‑185/07, Allianz SpA, Generali
Assicurazioni Generali SpA v West Tankers Inc.; Health Service Executive v S.
C., A. C., ECLI:EU:C:2012:255;]. It then confirmed its international jurisdiction
to try the case, because the spouses’ last common residence was in fact within
the courts venue.
Following the documents produced by the
claimant’s lawyer, i.e. the claim field with the Wroclaw Regional court, it decided to stay proceedings. The court underlined that the claim was filed
on January 22, 2016, i.e. prior to the Greek claim. The court also stated that
the Polish claim was served to the Greek husband, and that the case is still
pending before the Wroclaw Regional court, which has not yet decided on its
jurisdiction. The Greek court stressed that it has no authority to examine
whether the Polish court has jurisdiction, even if it is obvious that is has
not; this is for the Polish court to decide.
For the reasons above, the Gytheion First
Instance Court ordered the stay of proceedings until the Wroclaw Regional court
decides on the matter.
COMMENT: To the author’s knowledge, this is
the first judgment applying Article 19 Brussels II bis until today in Greece.
The uniqueness of the ruling is reason enough for sharing it with the public at
large. Beyond that, the judgment is innovative in the sense that it has not
ordered the stay upon the respondent’s request. This is usually happening
throughout EU national courts, and it is also mentioned in pertinent publications.
Unlike the above, the court became aware of the pending action in the course of
proceedings. In other words, the foreign lis pendens has emerged during the taking
of evidence in the hearing. The decision of the court is thus more than welcome
for a number of reasons: First, it provides a new facet to the court’s powers when
examining its jurisdiction; second, it abides by the wording of the law, in
this case Article 19.1 Brussels II bis; third, it serves the principle of
procedural economy.
Labels: Brussels II bis Regulation