So what is lis pendens?

So what is lis pendens?

"I read your contribution on the jurisdiction of Geneva courts in divorce cases where the spouse has moved abroad. I have Swiss nationality, live in Geneva and am now separated from my wife, who has French nationality. I want a divorce. Can I file for divorce in Geneva if my wife has filed or intends to file for divorce in another canton or in France?

When two courts are seised of the same dispute, the rules relating to lis pendens determine the order of priority of the courts.

All Swiss cantons apply the rules of the Code of Civil Procedure, articles 59 and 60 of which state that a court will only deal with claims and applications submitted to it if they satisfy the admissibility conditions laid down by law, in particular that the dispute is not the subject of a pre-existing lis pendens. Article 62 CPC specifies that proceedings are commenced by the filing of the request for conciliation, the application or the petition for divorce, or the joint petition for divorce. A certificate of filing of the document initiating proceedings is issued to the parties. The consequence of lis pendens is that the same case involving the same parties and the same facts cannot be brought before another authority.

Consequently, if divorce proceedings have been initiated in another canton by your wife, the Geneva judge hearing the case subsequently will have to rule that the application lodged in Geneva is inadmissible. Conversely, if the action was filed in Geneva and then only in another canton, the second judge will have to rule that the application is inadmissible, in which case the Geneva judge alone will have jurisdiction.

If your wife files for divorce in France and you subsequently file for divorce in Geneva, the judge will have to analyse the question of lis pendens on the basis of the LDIP, the Swiss law governing international situations mentioned in these columns last week, and not on the basis of the Lugano Convention, which is not applicable in divorce matters.

Art. 9 of the LDIP provides that when an action with the same object is already pending between the same parties abroad, the Swiss court must suspend the case if it is foreseeable that the foreign court will render, within a suitable period of time, a decision that can be recognised in Switzerland. Then, in accordance with art. 27 of the LDIP, the Swiss court must decline jurisdiction as soon as a foreign decision that can be recognised in Switzerland is presented to it. Consequently, a Geneva court that finds that a divorce action has already been filed in France will initially have to suspend the case and then declare that it does not have jurisdiction when the foreign decision is handed down.