Wednesday, 22 February 2017

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 [C489/14, Α v Β, ECLI:EU:C:2015:654; C173/16, M. H. v M. H., ECLI:EU:C:2016:542; C296/10, 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 [C185/07, 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.