Stays of matrimonial and related proceedings – part one

Insight

20.09.2021

Now that we are no longer members of the EU, and the transition period has ended, we are no longer subject to the strict first in time rule that applied as between member states (except Denmark), as a result of Brussels II bis. Without these lis pendens rules, it is likely that there will be more litigation over where divorce proceedings (and the accompanying financial proceedings) should take place.

Each party may wish to litigate in one jurisdiction rather than another due to the resulting financial (or other) advantage for them, so litigation regarding where to litigate can be hard fought.

The powers of the English court

In order to avoid competing litigation in different countries, the English court can adopt one of two courses of action, as appropriate:

It can grant a stay of the English proceedings; or
It can make an order restraining a party to the proceedings from seeking relief in the foreign jurisdiction.

This is a vast topic and so this column will be in two parts; part one will focus on orders staying English proceedings, and part two (which you can read here) on restraining parties from seeking relief in a foreign jurisdiction.

In this column we summarise the current position (assuming that proceedings are issued after 31 December 2020).

Staying English proceedings

Section 5(6) and Sch 1 of the Domicile and Matrimonial Proceedings Act 1973 ('DMPA') gives the court power to stay matrimonial proceedings in this jurisdiction where there are concurrent proceedings elsewhere in respect of the same marriage. Paragraph 7 of Sch 1 also requires a petitioner to provide details of any other divorce proceedings that are ongoing in the petition so that the court can be alerted to the issue.

The rules to determine whether the English court will stay the English proceedings depends on where the other proceedings are taking place.

Proceedings in a related jurisdiction (s 8 of Sch 1)

This includes Scotland, Northern Ireland, Jersey, Guernsey (including Alderney and Sark) and the Isle of Man.

Where there are concurrent proceedings in a related country and:

the parties have lived together since the marriage; and
the place where they lived together when the proceedings were begun or where they lived together last is in that related country; and
either party was habitually resident in that related country throughout the year ending with the date of the Petition or the date on which they last resided together;

then the English court must stay the English divorce proceedings.

If these conditions are not satisfied, then the court has a discretion whether to grant a stay and must consider which forum is the more suitable or appropriate (see further below).

Proceedings in all other countries

Under s 9 of Sch 1, the court may grant a stay if:

Proceedings in respect of the marriage or capable of affecting its validity or subsistence are continuing outside England and Wales.
The balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in that foreign jurisdiction to be disposed of before further steps are taken in the proceedings in the English court.

The court also has discretion to order a stay pursuant to the inherent jurisdiction (see s 5(6) of the DMPA).

Applying the balance of fairness and convenience test

It is clear from the statute that in considering the balance of fairness and convenience, the court must consider all relevant factors, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed.

It was also made clear in de Dampierre v de Dampierre [1987] 2 FLR 300 that the authorities dealing with stays under the inherent jurisdiction should be referred to when determining an application under para 9 of Sch 1 to the DMPA 1973. The aim of the two is essentially the same.

Therefore, the court will adopt a two-stage test:

The court will assess the most natural forum for the dispute and in particular consider the forum with which the case has the most real and substantial connections. The court will take all relevant factors into account, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed. The burden of proving this is on the party who seeks the stay.
If the court considers another forum to be more appropriate, then the court must go on to determine whether the party who opposes the stay can show that justice nevertheless requires that the trial should take place in England. It does not matter if a party would receive less money abroad, as long as substantial justice will be done overseas.

Factors that will impact upon the court's decision

The court has a very wide discretion and each case has to be decided on its own facts (de Dampierre). Therefore, it is impossible to set out a comprehensive list of the matters which the court will consider when assessing the balance of fairness (including convenience).

Factors that have been considered to be relevant by the court include:

the nationality of the parties;
the domicile of the parties;
where the parties' married and lived during their relationship;
where the parties have lived post-separation;
the parties' connections with England;
where the assets are located or salaries are paid;
where potential witnesses are located (although in light of recent developments and remote hearings this might be expected to have less importance going forwards);
the cost (both financial and emotional) of the proceedings in each jurisdiction.

Some of the more problematic factors to have been considered by the courts in recent years are explored further below.

The jurisdiction of the court to make and enforce orders in relation to the finances

In Mantegazza v Mantegazza [2017] EWHC 3811 the parties had entered into a pre-marital agreement, which conferred on the Swiss court exclusive jurisdiction to hear all disputes concerning their matrimonial property. This agreement was valid under the Swiss Private International Law Act. Consequently, a foreign decision ruling on matrimonial property would not be recognised in Switzerland. A property adjustment order in relation to property in Switzerland made by the English court would not be enforced in Switzerland unless it could be shown to relate solely to maintenance, which would be difficult given that the wife did not wish to reside there. In addition, the English court did not, as at the date of the hearing, have jurisdiction to consider the wife's maintenance application.

Moor J determined that the Swiss court was the more appropriate forum and acknowledged that there was little point in proceeding with the divorce in this jurisdiction if there was no jurisdiction to deal with financial remedies here.

The impact of a pre-nuptial agreement

There are a number of cases in which a pre-nuptial agreement, which includes a choice of law clause, has resulted in the court determining that another court is the more appropriate forum.

In S v S [1997] 2 FLR 100 Wilson J (as he then was) held that it was fair to a wife to stay English divorce proceedings in favour of those in New York, pursuant to a pre-nuptial agreement which allocated jurisdiction to that State, and limited her financial provision.

In Ella v Ella [2007] EWCA Civ 99, [2007] 2 FLR 35, the Court of Appeal held that it was fair to stay English divorce proceedings in favour of those in Israel, because of a pre-nuptial agreement which provided for Israeli law to apply, and for disputes to be dealt with in Israel. This was the case even though it was held that:

'[A]bsent the agreement, this would be an English case and the husband would not be able to show that Israel was clearly the more appropriate forum.'

Timing

The race to secure jurisdiction that applied under Brussels II bis does not strictly apply to forum conveniens arguments under the DMPA. However, in Otobo v Otobo [2002] EWCA Civ 949, [2003] 1 FLR 192 Thorpe LJ stated that in his view, in order to:

'. . . confine to some extent the effect of applying two different rules [ie under DMPA 1973 and BIIa], greater weight should be given to the consideration of where proceedings were first issued . . . '

Now that we no longer fall within the Brussels II regime, it will be interesting to see the extent to which timing plays a role in the court's reasoning in DMPA 1973 cases.

To stay or not to stay; the 'substantial injustice' proviso

If the court determines that another forum is more appropriate, it will then turn to consider whether it will exercise its jurisdiction to stay the proceedings. If it will cause substantial injustice to do so, then it will not stay the English proceedings.

It does not matter if a party would receive less money abroad, as long as substantial justice will be done overseas. Even if a party might be said to suffer injustice if a stay is granted, the court must be satisfied that such injustice is 'substantial'.

However, there is little guidance available on when an injustice will be considered to be 'substantial'.

In Mantagazza, the fact that the wife could apply to the English court for financial provision after an overseas divorce pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 (through which an injustice could be remedied) was of relevance to the judge's consideration. Whilst he hoped that it would not be necessary Moor J found that he could not ignore the fact that it was available as a fall-back.

The effect of a stay

A stay of the English divorce proceedings will prevent any further applications being made in those proceedings and will give priority to the proceedings in the competing jurisdiction.

It will also restrict the effect of any orders which have been made ancillary to the English proceedings, so that, for example, any maintenance pending suit orders made are also stayed. For this reason, it is possible for the terms of a stay to include financial provision for the financially weaker party, to include provision for legal costs in the foreign jurisdiction.

Read part two, which focuses on restraining parties from seeking relief in a foreign jurisdiction.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

Please note this content was originally published in the Family Law Journal, August 2021 edition, best practice section.