Ella v Ella

When exercising the discretion to stay matrimonial proceedings in favour of a foreign jurisdiction, the court should first assess whether that jurisdiction is clearly the more appropriate forum. It must then decide whether the balance of fairness nevertheless requires the English proceedings to continue.

A pre-nuptial agreement governed by, and likely enforceable under, foreign law may be a major connecting factor. Its substantive effect need not be determined at the forum stage. A juridical advantage in the foreign court does not alone justify refusal of a stay. The court must assess substantial justice in both jurisdictions, including protective conditions and any available statutory financial-relief remedy.

The wife commenced divorce proceedings in London. The husband commenced competing proceedings in the Rabbinical Court in Tel Aviv and applied for a stay of the English proceedings.

Macur J granted a stay, subject to undertakings and conditions providing maintenance, payment of property outgoings, and funding for reasonable Israeli legal costs. The wife appealed. She contended that England was the appropriate forum and that the judge had wrongly treated an Israeli pre-nuptial agreement as a major factor without investigating its validity.

The central issue was whether the balance of fairness and convenience required the English matrimonial proceedings to be stayed in favour of the Israeli proceedings.

1. Appeal dismissed. Permission to appeal was granted, but Macur J had made no error in granting a conditional stay under Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973.

2. The applicable approach, derived from de Dampierre v de Dampierre [1988] AC 92 and The Spiliada [1987] 1 AC 460, was to consider first whether Israel was clearly the more appropriate forum. If so, the court had to consider whether the balance of fairness nevertheless made a stay unjust. The exercise remained fact-sensitive and permitted consideration of wider connecting factors.

3. The parties and children had strong connections with England, but their substantial connections with Israel, the advanced Tel Aviv proceedings, and the pre-nuptial agreement made Israel clearly the more appropriate forum. The agreement expressly selected Israeli law and was likely to be enforceable there. It was therefore a major connecting factor. The court was not required at the forum stage to determine whether the agreement would be vitiated or what weight an English court would give it on ancillary relief.

4. The wife’s loss of the opportunity to obtain an award under the Matrimonial Causes Act 1973 did not itself make a stay unfair. Juridical advantage required a two-sided assessment. The conditions imposed by Macur J, together with the prospect of financial relief under Part III of the Matrimonial and Family Proceedings Act 1984, substantially protected the wife if she received inadequate provision in Israel.

5. The procedural position in Israel also mattered. The agreement and order in the Rabbinical Court made a stay there practically unlikely. Refusing a stay in England would create an expensive and antagonistic race between jurisdictions. The conditional stay best met the balance of fairness.

• Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed. The conditional stay ordered by Macur J was upheld.
• High Court, Family Division: Macur J granted a stay of the English matrimonial proceedings in favour of the Tel Aviv proceedings, subject to undertakings and conditions protecting the wife’s maintenance, housing outgoings and reasonable Israeli legal costs.