Case No. ZZ20D05011

”10.I went on to consider the judgment of the Court of Appeal in Thum v Thum [2018] EWCA Civ 624, specifically at §55. I return to this decision at §25 below.11.At §30 of the 2021 Divorce judgment, I cited the extensive passage in the judgment of Judge Kostadinova of the Plovdiv Family Court in Bulgaria, and her finding, confirmatory of my earlier finding, that the English Court was the court first seised. I repeat now what I said then – namely my admiration for the “very careful, thorough, and legally impeccable analysis of the current situation” which the Bulgarian Judge had brought to the issue.12.I continued in the 2021 Divorce judgment at §33 – 37 to say this:“33. The mother’s case is that her petition was successfully lodged (on-line) in England on 12 January 2020. The undisputed material documentary evidence which relates to this is as follows:i) TP has produced an e-mail receipt in respect of her on-line submission for divorce at 8:53:38pm on 12 January 2020; at that stage, the receipt recorded the following information: “Petition awaiting payment”;ii) At 11:03pm on 12 January 2020 (i.e., a couple of hours later on the same day), TP received a further receipt by e-mail confirming that “Your payment of £550 to Divorce was successful”, and a payment reference was given;iii) Simultaneously to the message above (at (ii)) (11:03pm on 12 January 2020), TP received an e-mail in these terms: “Your divorce application has been submitted to the Courts and Tribunals Service Centre”. A temporary reference number was given, and this was followed by the words “You’ll be given a full case number when your application has been accepted and issued”.34. As I earlier indicated (see the extract from my earlier judgment quoted at §16 above), it appears that the English petition was confusingly actually issued more than once, on 29 January 20202, on 20 February 20203 and/or on 21 February 20204. On each occasion, the petition was given the same case-number.35. It is recorded, and is not disputed, that NP issued his divorce proceedings in Varna Bulgaria on 4 February 20205. NP’s primary case is that the court should treat the latest date in the sequence above (§33/34) i.e., 20/21 February (when final confirmation was received of the issuing of TP’s petition) as the date when the English Court was ‘seised’. However, I am concerned not when the petition was issued, but when it was lodged. When pressed, Mr Birch accepted that there was no evidential uncertainty about the date on which the English petition was submitted online, or ‘lodged’, and that was 12 January 2020 (he conceded in submissions that “it is difficult to say that it was not lodged then”).36. When is a petition (“the document instituting the proceedings or an equivalent document”) “lodged with the court” (per Article 16)? The answer to this question is located in the judgment in MH (see above at §27): it “is the time when that document is lodged with the court concerned, even if under national law lodging that document does not of itself immediately initiate proceedings”.37. In my judgment, it is clear that TP’s divorce petition was successfully “lodged” in the English Court on the evening of the 12 January 20206. While it is not material for me to decide whether this was at 8.53pm when TP received the receipt for her on-line submission, or when she received the later confirmation of her effective submission (11.03pm) once payment had been made, in my judgement it is likely to be the earlier time, and that would have been effective to establish seisin, provided that she went on to pay the requisite fee (a step which she would have been required to take prior to service on the Respondent: see Article 16(1)(a)), and that she did indeed serve NP (which I am satisfied she did). On any view, she lodged her petition in England many days before NP lodged his petition with the Bulgarian Court. I am, for the avoidance of doubt, satisfied on the authorities that it was not necessary for the court to issue the proceedings, nor for actual service to be effected on the respondent, in order to establish seisin under Article 16.”13.At §50(iii)(a) of the 2021 Divorce judgment, I concluded:“England is the court first seised of divorce process; the divorce petition was lodged with the court on 12 January 2020. This conclusion has separately been reached by the Bulgarian Court, who will be invited in the circumstances to decline jurisdiction now in accordance with Article 19(3) BIIR;”The new information14.Since my ruling in August 2021, both the husband and Mr Birch have jointly and individually made extensive enquiries to establish with greater specificity the manner in which the wife’s petition for divorce was processed in this country. They plainly sought evidence which (a) would explain the anomaly of two petitions apparently being issued in the English Court, and (b) would unsettle my finding that the wife’s divorce petition was lodged (within the meaning of Article 16 BIIR) on 12 January 2020. They have obtained copies of most of the documents which were contained in the Family Court file (I myself went through the file in its entirety and ordered the release of a significant number of the documents), and with my permission they have obtained further printouts from the FamilyMan system (this is the Family Court’s Case Management System).15.It is evident that, in spite of the considerable additional material now before the court, there are still some gaps in the documentary archive, and I recognise that I am, even now, working with an incomplete suite of material. By way of example, it has been confirmed to the court by the Operations Manager at the relevant Court and Tribunal Service Centre (CTSC) (at which HMCTS provides centralised administration in the processing of divorce applications) that automatically generated e-mails sent by the CTSC to the wife in January/February 2020 “will not be retrievable. The notifications are automatically generated when a case moves into a different status within the digital system”.16.Notwithstanding the gaps, of which there may be a few, the upshot of the husband’s research is that a more detailed timeline of events is now available to the court. There having been no single, unified, chronology prepared by either party, I have prepared one for myself, and incorporate it (below) into this judgment. While the key dates in this chronology were known to me in July 2021, some of the detail was not: 17.The Operations Manager at the relevant CTSC has further said7:“For clarity the case was issued on the 29th January, then once the case admin realised, they had concerns over the addresses being the same, but the petitioners marked as confidential, they moved the case back into a