|English Divorce Can Be Blocked By Proceedings Launched Outside Europe|
The England and Wales Court of Appeal (EWCA) has ruled that divorce proceedings in the English courts can be stayed if rival proceedings are already under way in a jurisdiction outside Europe.
The judgment in Mittal v Mittal  EWCA Civ 1255 clarifies the status of forum conveniens arguments in the context of the European Union's Brussels II regime for determining the appropriate jurisdiction for civil litigation.
Both parties in the case are Indian nationals who married in India in 2003, but spent two years of their marriage living in England before separating in 2009. Both returned to India, where Mr Mittal issued divorce proceedings. Two years later, Mrs Mittal issued a divorce petition in London.
Mr Mittal opposed this petition in the English family courts, on the grounds that proceedings were pending in India, which was in any case a more appropriate forum under the Domicile and Matrimonial Proceedings Act 1973.
To defend her petition Mrs Mittal cited the European Court of Justice's decision in Owusu v Jackson (C-281/02 2005). Although Owusu was a personal injury rather than a matrimonial case, Mrs Mittal contended its outcome showed that English courts had no jurisdiction to stay English proceedings on forum conveniens grounds.
The initial family court hearing under Boden J found in Mr Mittal's favour. Boden accordingly stayed the English proceedings on the basis that they would come to an end and be dismissed when decree absolute was pronounced in India.
Mrs Mittal then took her case to the Court of Appeal. Here the legal arguments turned on whether the Owusu v Jackson precedent applied under Brussels II (officially the Revised EC Council Regulation No 2201/2003).
Mrs Mittal's claim was that the Domicile and Matrimonial Proceedings Act stated that English courts have no power to stay an English divorce suit under forum conveniens where Brussels II applied ‒ which, she claimed it did because of Mr Mittal's habitual residence in England at the time. Thus, she claimed, the finding in Owusu would apply.
However the EWCA disagreed. It noted that the Owusu case had been heard under the Brussels I regime, a predecessor to Brussels II but with different legislative language and policy objectives. Moreover, Brussels II recognised diversity in different legal systems in a way that was not accepted in Brussels I. In addition, the European Court of Justice had in Owusu refused to decide on the specific question of whether the courts of a member state can stay proceedings if there are competing proceedings pending in a non-member state. On top of that, Owusu was not a divorce case.
The EWCA duly confirmed Boden J's ruling in favour of Mr Mittal.
The decision is an important one not just for England but for other jurisdictions around the world, in particular for any non-European jurisdiction, according to Mr Mittal's counsel, Tim Amos and Duncan Brooks of Queen Elizabeth Building. They call it 'a genuine victory for international family justice'. If Mrs Mittal had been successful, they point out, the English courts would have had to continue hearing a divorce suit even if divorce proceedings had already been commenced in another non-European country ‒ resulting in an unstoppable divorce race.
Mrs Mittal has already announced her intention to appeal to the UK Supreme Court ‒ though it is not certain that permission will be granted.
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Published on our website on October 31, 2013