So if there was any doubt, a stayed application is still alive, and for the purposes of jurisdiction, such an application can be deemed the 1st in time, if so issued before a competing foreign application, or can become 1st in time and so obtain priority status, if the 1st in time (non-UK) application later comes to an end, as was the case in the present matter.
The divorce procedure in Italy, as in some other Countries, requires a 2 stage process and separate applications; this is different to where the 1st stage can be turned into a final divorce. The risk to such a process, as demonstrated by this authority, is that an application for Divorce may be issued in the UK before the foreign State stage 1 has completed, and then such an application is (automatically) stayed in the UK, but which gives rise to the UK “stayed” application becoming the lead application immediately upon the Stage 1 application coming to an end; even where an in-country Stage 2 application is made as soon as possible thereafter, as there will “always” be a time gap between the 2 applications, that is when the UK stayed application becomes the 1st in time and thus the active primary application which will snooker any subsequent non-UK application for Stage 2 or otherwise.
The facts in the present matter highlight this risk of change of jurisdiction. An application was made in Italy by the husband for Stage 1 (separation) on 23 March 2016 and then later (19 May 2016) the wife applied in the UK for divorce. The wife’s UK petition was “stayed” and then following a series of further stays, eventually the Italian Stage 1 proceedings came to an end on 7 October 2019 and the husband promptly issued a Stage 2 (divorce) application the same day. The time between the end of Stage 1 and the husband’s Stage 2 application being lodged, however short, left only the UK “stayed” application, and that therefore became the 1st in time and accordingly, the lead application.
The duty for seeking the dismissal of a UK application is upon the parties. The literal interpretation of Article 19, as accepted by the Court, supports the fact that there is no onus on the court to act of its own motion as to a dismissal of a 2nd UK application, such being a significant draconian Order to make absent input from the parties; a party must apply for dismissal, which then, if the issue of lis pendens is proved, must result in a declining of jurisdiction (ie. dismissal) of the UK 2nd in time application (Article 19(3)), but this does not act retrospectively; as stated by Baker LJ  “[proceedings] are only discontinued when the court so orders. If no order is made, there is no discontinuance.”
The fact is, that such a process of seeking a dismissal takes time, and time is ever reducing, such that it may be that there is potentially more choice as to forum for divorce than may at first glance appear, as can be seen from the facts of this case; a well-timed, but apparent 2nd in time issued application in the UK (which will automatically be stayed) will become the 1st in time application where the Stage 1 application made in the foreign state comes to an end but the UK application had not been yet dismissed. This is further compounded by the fact that, as in the present matter, the 2nd stage Italian application cannot be issued before the 1st stage has completed, where-as of course in the UK, there is no such restriction on issuing.
Timing is everything and it is important to recognise that once a foreign State has jurisdiction in relation to a divorce process, it may not always retain such without the parties being active in fighting off subsequent UK applications, even where such are regarded by a party as obviously doomed to failure…they may be quite the opposite.
Stuart McGhee is a barrister specialising in matrimonial law both domestically and those with an international or cross-border dimension that requires a robust targeted issue focus. Stuart McGhee was instructed on behalf of the respondent in the case Manetta v De Filippo  EWCA Civ 409 (29 March 2022). For further information on his practice, please contact our clerking team on 020 7353 0711 or via email