Q&As

A petition issued in England and Wales based on unreasonable behaviour was withdrawn by consent as the respondent wished to reconcile. The respondent then issued their own petition in another European country, based on two years separation with consent. The period of two years includes a period of reconciliation. Can the original petitioner revive their unreasonable behaviour petition and resecure jurisdiction in England and Wales? What other options may be available to the original petitioner?

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Produced in partnership with Katherine Illsley of 4 King’s Bench Walk
Published on LexisPSL on 01/04/2019

The following Family Q&A produced in partnership with Katherine Illsley of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A petition issued in England and Wales based on unreasonable behaviour was withdrawn by consent as the respondent wished to reconcile. The respondent then issued their own petition in another European country, based on two years separation with consent. The period of two years includes a period of reconciliation. Can the original petitioner revive their unreasonable behaviour petition and resecure jurisdiction in England and Wales? What other options may be available to the original petitioner?

There is no provision in Family Procedure Rules 2010, SI 2010/2955 for the ‘revival’ of a petition that has been withdrawn by consent, nor have we been able to locate relevant case law in this regard, including on the issue of ‘misrepresentation’, which in the scenario described may require the original petitioner to adduce evidence if their position is that the original respondent misrepresented their reasons for seeking a reconciliation. In those circumstances, it would be prudent to seek advice from specialist counsel who may be fully apprised as to the facts of the case and the evidence available.

A preliminary step is to ascertain whether the European country is a signatory to Council Regulation (EC) No 2201/2003, known as Brussels II revised or Brussels II bis. Consideration should then be given as to whether the European country properly has jurisdiction under Article 3 of the Brussels II bis. Article 3 states that, in matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:

‘a) in whose territory:

—the spouses are habitually resident, or

—the spouses were last habitually resident, insofar as one of them still resides there, or

—the respondent is habitually resident, or

—in the event of a joint application, either of the spouses is habitually resident, or

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