Please note this content was originally published in the Family Law Journal, September 2021 edition, best practice section.
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.
In order to avoid competing litigation in different countries, the English court can adopt one of two courses of action, as appropriate:
(a) it can grant a stay of the English proceedings; or
(b) it can make an order restraining a party to the proceedings from seeking relief in the foreign jurisdiction.
Last month, in part one, this column focused on orders staying English proceedings, and this month we will be focusing on restraining parties from seeking relief in a foreign jurisdiction. Again, we summarise the current position (assuming that proceedings are issued after 31 December 2020).
In the event that you are faced with two competing sets of proceedings in different jurisdictions, you can take advice in the other jurisdiction and consider whether to apply to stay the divorce abroad under the domestic family law of that country. However, in addition, you may wish to make an application in the English courts for an "anti-suit" injunction or an interim measure such as a "Hemain injunction".
Hemain injunctions are a short-term remedy by which the court prevents spouses from pursuing litigation in another country whilst at the same time applying to stay the English proceedings brought by their partner. Where a respondent to English divorce proceedings has applied to stay those divorce proceedings, but the stay application is likely to take many months to resolve, a Hemain injunction can prevent him or her from attaining an advantage by progressing foreign proceedings in the interim. The court can restrain the spouse from taking further steps abroad until the English court has ruled on the issue of jurisdiction pursuant to the stay application here.
The purpose is to preserve the status quo and prevent one party from obtaining an unfair advantage. Fairness requires that neither party should be permitted to litigate the substantive issues in either court until such time as both courts having disposed of any preliminary issues as to jurisdiction are ready to embark upon a consideration of the substantive issues.
To succeed the applicant must show that the respondent's conduct is vexatious or oppressive by attempting to stay the English proceedings whilst pressing ahead with the foreign proceedings.
In Hemain v Hemain  2 FLR 388 itself the parties were French nationals whose matrimonial home was in England. The wife petitioned in England and the husband petitioned in France. The case was in 1988 and so prior to the Brussels legislation. The husband applied to stay in the English proceedings. The wife obtained an injunction preventing the husband from progressing the French proceedings until the determination by the English court of his application for the English proceedings to be stayed:
"...the balance of convenience is wholly in favour of maintaining the status quo, at any rate until after the hearing of the application for a stay on 9 May. One has to note that in effect what the husband has done is to obtain a temporary injunction to the wife's English proceedings... That, in the present case, I think, is an injustice. It is...vexatious and oppressive and an abuse of the proceedings of this court. It is such when he seeks to stay English proceedings for the dissolution of this marriage whilst not being prepared to hold his hand insofar as the French proceedings are concerned until the application for a stay has been determined."
The English proceedings were delayed by the stay application and there was no comparable challenge to the French proceedings. The purpose and effect of the injunction was to prevent the husband pursuing the French proceedings until the preliminary issue had been resolved by the English court. It was unfair to allow the husband to litigate the substantive issues in the French court whilst he was preventing the wife from litigating the substantive issues in the English court, ie it was vexatious, oppressive or unconscionable for him to seek to delay the English proceedings without being willing to hold up his French proceedings.
If faced with a stay application, a petitioner in the English proceedings should consider seeking an undertaking from the respondent that they will not pursue the foreign proceedings until the stay application has been determined. This can then be mirrored by an order from the foreign court. If the undertaking is not freely given, the application for a Hemain injunction can then be made.
Consider applying for the decree absolute to be expedited if the English court determines that it does have jurisdiction. That way, the decree can be secured, and any financial applications can proceed.
Even when faced with the application for a Hemain injunction, it is still important to seek to establish a level playing field. Consider, therefore, if there is anything that the order should permit the respondent to do to ensure that, when the English jurisdictional dispute is resolved, he or she does not find themselves behind the applicant in the race. For example, should the respondent be able to have any jurisdictional questions resolved by the foreign court at the same time as the English court determining if it has jurisdiction?
These are injunctions permanently restraining a party from the beginning or continuing with proceedings in the foreign jurisdiction. The order is made against the individual, not the foreign court, and requires a party to take all necessary steps to stay proceedings in the foreign jurisdiction.
To succeed, the applicant must show that:
- England and Wales is the natural forum.
- The pursuit of the foreign proceedings would be vexatious or oppressive, ie there has to be unconscionable conduct on the part of the party pursuing the foreign proceedings.
In considering whether or not to grant an anti-suit injunction the court does not proceed on the same principles as those applied when considering whether or not to stay proceedings on the ground of forum non-conveniens. But it is helpful to have regard to those principles – if the case is one in which the English court is prepared to stay the English proceedings on the ground of forum non-conveniens it must necessarily follow that it would not be prepared to grant an anti-suit injunction.
It is not of itself vexatious, oppressive or unconscionable for a party to pursue divorce and financial proceedings in a foreign court merely because his motive for doing so is to obtain what will be a financially more advantageous order.
The court must then decide whether in the circumstances of the particular case, the injunction is required to promote the ends of justice. The court must have regard not only to the injustice to the applicant if an injunction is not granted, but also to the injustice to the respondent if it is.
Both anti-suit and Hemain injunctions are rare orders, fraught with difficulty, not least because even if obtained, there are likely to be significant enforcement issues unless the party subject to the injunction is pre-sent or retains links to this jurisdiction. It will remain to be seen whether, in this post-Brexit world, they become more commonplace as a way of securing English jurisdiction.
If you require further information about anything covered in this briefing, please contact Claire Gordon, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2021