Perera v Perera

When deciding whether divorce proceedings should continue in England or be stayed in favour of proceedings abroad, the court must conduct a discretionary balance of fairness and convenience between the spouses. It should consider all relevant factors, including witness convenience, delay, expense, the circumstances concerning children and financial issues. A factor that was not clearly identified or given sufficient weight does not, by itself, justify permission to appeal. The appellate court should assess proportionately whether further proceedings are warranted and should respect the lower court’s overall discretionary evaluation.

This was an application for permission to appeal from an order made by the President of the Family Division on 23 January 2002. The underlying dispute concerned competing divorce proceedings: the wife’s proceedings were issued in London on 17 July 2001, while the husband’s proceedings were issued in Sri Lanka on 26 July 2001.

The President stayed the English proceedings under section 5(6) and Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973, concluding that the balance of fairness and convenience favoured Sri Lanka. The wife argued that insufficient weight had been given to the children’s habitual residence in England, her own position, and the practical consequences of returning to Sri Lanka. The central issue was whether those criticisms justified a renewed permission hearing or an appeal.

Lord Justice Thorpe delivered the judgment, and Lord Justice Latham agreed.

1. The application for permission to appeal was dismissed. The President had been exercising the discretion required by section 5(6) and Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973. That exercise required an overall balance of fairness and convenience between the spouses, having regard to all relevant factors, including witness convenience and any delay or expense resulting from staying or continuing the proceedings.
2. The President had found that the location of the witnesses gave only a slight advantage to Sri Lanka, while delay and expense were neutral in the absence of clear evidence. She considered the children’s present and past connections with England and Sri Lanka, the family’s history, the parties’ earlier intention that relevant issues should be dealt with in Sri Lanka, and the financial issues.
3. The Court of Appeal accepted that the practical consequences of the mother’s position, including the possible effect on the children and her immigration status, had not been clearly identified and weighed in the President’s judgment. That was a legitimate criticism, but it did not justify further appellate proceedings. The question had to be approached proportionately. It was insufficient merely to argue that one consideration should have received greater weight where the lower court had undertaken a difficult discretionary balancing exercise.
4. The President had been entitled to give substantial weight to the family’s Sri Lankan connections and its recent adoption of Sri Lanka as the appropriate jurisdiction. It would not be proportionate to extend proceedings in the Court of Appeal merely to determine where the substantive contest should take place.

Order: application dismissed. Public funding assessment of the applicant’s costs.

• Court of Appeal (Civil Division): On 8 May 2002, the application for permission to appeal was dismissed.
• Family Division: The President made an order on 23 January 2002 staying the English divorce proceedings in favour of proceedings in Sri Lanka and refused permission to appeal.