JKN v JCN

A court with jurisdiction under the Brussels regime is not automatically deprived of a domestic discretion to stay matrimonial proceedings in favour of parallel proceedings in a non-member State. Owusu was not extended to that situation. Nor was its reasoning extended to divorce jurisdiction under Brussels II Revised. The court therefore retained the discretion under paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973. Applying the Spiliada test, the court stayed the English divorce proceedings because New York was clearly the more appropriate forum and no overriding consideration of justice required proceedings to continue in England.

The wife issued divorce proceedings in England in May 2009. The husband subsequently issued divorce proceedings in New York and applied for a stay of the English proceedings. The parties, originally from New York, had lived in England for most of their marriage but had relocated with their children to New York in 2008. The wife also sought financial relief and interim maintenance in England.

The central questions were whether Article 3 of Council Regulation (EC) No 2201/2003, read with Owusu v Jackson, removed the domestic power to stay proceedings in favour of a non-member State, and, if not, whether New York was the more appropriate forum.

1. Jurisdiction to stay. The New York proceedings remained valid pending any successful motion to dismiss and were proceedings capable of affecting the marriage for the purposes of paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973.
2. Effect of Owusu. The court held that the reasoning in Owusu v Jackson did not need, and should not, be extended to parallel proceedings in a non-member State. Such an extension could produce irreconcilable judgments, create a lacuna where no lis pendens mechanism applied, and increase uncertainty and cost. The analysis in Lucasfilm Ltd v Ainsworth supported that conclusion.
3. Brussels II Revised. Article 3 of Brussels II Revised differed materially from Article 2 of Brussels I. It regulated the allocation of divorce jurisdiction between potentially concurrent Member State jurisdictions, rather than imposing the same mandatory defendant-domicile rule considered in Owusu. The court therefore retained a domestic discretion to stay in favour of New York.
4. Statutory construction and maintenance. The phrase “proceedings governed by the Council Regulation” in paragraph 9 of Schedule 1 was construed narrowly. It referred to cases where the competing proceedings were in another Member State, engaging Article 19. The wife’s maintenance claim was ancillary to the divorce petition and fell away if the petition were stayed. Jurisdiction over ancillary relief was conferred by national legislation, not Brussels I or Brussels II Revised.
5. Discretion. Applying the two-stage Spiliada test as adopted for matrimonial proceedings in De Dampierre v De Dampierre, New York was clearly and distinctly the more appropriate forum. The parties lived there, neither intended to return to England, and New York was better placed to address accommodation and long-term maintenance issues. The husband’s earlier deception and tactical conduct did not amount to compelling reasons to retain the proceedings in England.
6. The stay was granted subject to arrangements for fresh New York divorce proceedings, protection against any advantage arising from the husband’s earlier issue date, interim financial arrangements, costs and settlement discussions. Further directions and costs were reserved.

First-instance decision. The judgment records that an appeal and possible reference to the Court of Justice might follow, but no appellate decision is stated.