23 April 2008
English jurisdiction for divorce and financial claims can be worth fighting for as the difference in the level of financial award, depending upon where the claim is dealt with, can be vast. Disputes about which country should deal with a divorce and financial claims (known as forum disputes) are high-stake with international couples navigating through complex international, EU and domestic laws.
The facts of Mittal v Mittal  EWCA Civ 1256 illustrate the allure of the English Court to financially weaker parties even where they have only the slightest of links here and the lengths to which they will go to try to hold on to this most generous jurisdiction.
The case concerned a forum dispute between England and India. Both parties were Indian nationals and they had married in India. They moved to England in 2006 and separated in 2009. Neither of them had any assets or income in the UK. Following separation the husband started divorce proceedings in India in 2009 and the wife issued her petition in England in 2011 despite the existence of the husband's Petition and the fact that she had returned to live in India in 2010.
The question was whether the English court was permitted to stay (i.e. stop) the wife's English petition in favour of the husband's petition in India on the basis that India was the more appropriate and convenient jurisdiction (forum non-conveniens) or whether the decision in the European Court of Justice in Owusu v Jackson (281/02)  QB 801 applied. If the Owusu case did apply that meant that if the English Court had jurisdiction it had no discretion to refuse to exercise its jurisdiction i.e. it was compelled to deal with the divorce and financial claim.
This point was argued in JKN v JCN  in which Mark Harper acted for the wife. That case involved a dispute between England and New York. The court held that the English court retained the power to grant a stay on the basis, in that case, that New York was the more appropriate forum.
In Mittal v Mittal the Court of Appeal approved the decision in JKN v JCN and decided that Owusu did not apply to family cases on the basis that the Owusu case concerned a different convention regulating jurisdiction in a very different field of activity (Owusu related to a commercial dispute and not a family matter).
The result is that where the forum dispute in a family law case is between England and a non-EU country the English Family Court continues to have power to stay a divorce and financial claim made here in favour of another more appropriate or convenient jurisdiction elsewhere.
In forum disputes relating to EU countries (save for Denmark), the first in rule time continues to apply meaning that the first party to issue divorce proceedings will secure jurisdiction in their chosen country.
However, in either situation, securing a divorce in a foreign jurisdiction may only be a temporary fix. Where there are links to England a ‘second bite of the cherry' may be possible by making a claim for a financial award after a foreign divorce under Part III of the Matrimonial and Family Proceedings Act 1984.
The lesson to be learnt? A clear road map is required to get clients into their jurisdiction of choice otherwise they could end up having proceedings in a country adverse to their interests and at great expense or loss.
The depth of experience in international family law cases and the contact network of the Withers family law team (with 11 fellows of the International Academy of Matrimonial Lawyers across our London and Hong Kong offices) makes us well-placed to assist on these complex multi-jurisdictional cases.
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