de Dampierre v de Dampierre

When concurrent matrimonial proceedings are pending abroad, the statutory “balance of fairness” should be assessed through the structured approach used for forum non conveniens. The court first identifies whether an available foreign forum is clearly more appropriate by reference to connecting factors. It should ordinarily grant a stay unless justice requires otherwise.

The loss of a personal or juridical advantage in England, including the prospect of more generous financial relief, does not by itself prevent a stay. The court must evaluate the nature of the advantage, the parties’ connections, the progress of the foreign proceedings, practical inconvenience and whether substantial justice will be available abroad. Fairness under paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 depends on all the circumstances.

In de Dampierre v de Dampierre, a French husband began divorce proceedings in Paris. His French wife subsequently petitioned for divorce in England after moving to New York with their child. The French court accepted jurisdiction, permitted the divorce proceedings to continue and made provisional orders concerning custody, access and maintenance.

Sir John Arnold, President of the Family Division, refused the husband’s application to stay the English proceedings under section 5(6) and paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973. The Court of Appeal upheld that decision. Both courts considered that the wife’s prospect of obtaining more favourable financial relief in England made it unjust to confine her to France.

The husband appealed. The central issue was how the statutory balance of fairness should be assessed, particularly where the foreign forum was the natural forum but its substantive matrimonial law might provide less favourable financial relief.

1. Appeal allowed unanimously. Lord Goff of Chieveley and Lord Templeman delivered the substantive speeches. Lord Keith of Kinkel, Lord Brandon of Oakbrook and Lord Ackner expressly agreed with both. The orders below were set aside and the English divorce proceedings were stayed.

2. Per Lord Goff, paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 applies where relevant matrimonial proceedings are continuing in another jurisdiction before the English trial begins. The court must determine whether the balance of fairness, including convenience, makes it appropriate for the foreign proceedings to be disposed of first. If those prerequisites are met, the court retains a discretion to grant a complete or partial stay.

3. Per Lord Goff, judges should structure that assessment in the same way as a forum non conveniens inquiry involving pending foreign proceedings. Although the statutory and common-law language differs, both are directed to the parties’ interests and the ends of justice. Following Spiliada Maritime Corporation v Cansulex Ltd [1986] 3 WLR 972, the court first examines connecting factors to determine whether another available forum is clearly more appropriate. A stay should then ordinarily follow unless justice requires otherwise.

4. Per Lord Goff, the existence of foreign proceedings is not invariably decisive. Tactical or merely embryonic proceedings may carry no weight. Genuine proceedings which have developed sufficiently to affect the parties’ dispute, especially where their effect is likely to continue, may be a material factor.

5. Per Lord Templeman and Lord Goff, the loss of a “legitimate personal or juridical advantage” in England is not conclusive. The court must identify and evaluate the advantage and ask whether substantial justice will be done in the more appropriate foreign forum. A plaintiff cannot establish injustice merely by showing that English law might permit a larger recovery or more favourable relief.

6. France was plainly the natural forum. The parties and marriage were French, substantial family and financial connections lay in France, and the wife had voluntarily severed her tenuous connection with England. The French court had already made significant provisional orders. Its fault-based rules governing compensatory payments differed from English law, but that difference did not establish that substantial justice would be denied.

7. Per Lord Templeman, continuation in England would duplicate expense, exert pressure through assets retained in England and produce decisions of little relevance to the child’s future. The wife was ordered to pay the husband’s costs in the House. There were no orders for costs below, and the cause was remitted to the Family Division to proceed consistently with the judgment.

1. House of Lords: In de Dampierre v de Dampierre [1988] AC 92, unanimously allowed the husband’s appeal, set aside the orders below and stayed the English proceedings.
2. Court of Appeal: On 5 June 1986, Dillon and Croom-Johnson LJJ upheld the refusal of a stay. The House of Lords set aside that order.
3. High Court, Family Division: On 11 December 1985, Sir John Arnold dismissed the husband’s application to stay the wife’s English divorce proceedings. The House of Lords set aside that order.