AB v CB

The court retains a statutory discretion to stay properly constituted English matrimonial proceedings in favour of proceedings in a non-Convention jurisdiction. The discretion under Schedule 1 paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973 survives Brussels II Revised. The court must first identify a more appropriate forum and then consider whether fairness nevertheless requires the English proceedings to continue. A maintenance-pending-suit application under section 22 of the Matrimonial Causes Act 1973 depends on the continuation of the divorce petition and is stayed with it. A section 27 application is free-standing, but may remain stayed under the court’s inherent jurisdiction where the same issues can be resolved more cheaply and conveniently abroad.

The wife issued English divorce proceedings relying on the husband’s habitual residence in England. The husband had earlier issued divorce proceedings in India, where both parties and their child lived and where the marriage had taken place. The wife also pursued maintenance applications under sections 22 and 27 of the Matrimonial Causes Act 1973.

The husband applied to stay the English divorce petition under section 5(6) and Schedule 1 paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973. The central issues were whether the court retained a forum conveniens discretion despite Brussels II Revised, whether India was the more appropriate forum, and what effect a stay would have on the maintenance applications.

1. Discretion to stay. The court rejected the submission that Brussels II Revised and Owusu v Jackson [2005] QB 801 had removed the discretion under Schedule 1 paragraph 9. The reasoning in JKN v JCN [2011] 1 FLR 826 was adopted. The words excluding proceedings governed by the Council Regulation required a narrow construction. They excluded proceedings between Convention countries, not proceedings involving a non-Convention country. The statutory discretion could not be disapplied without clear primary legislation.
2. Forum conveniens. Applying the two-stage approach in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and de Dampierre v de Dampierre [1988] 1 AC 92, India was plainly the forum with the more substantial connection. The parties, child, families, evidence, language, cultural issues and financial circumstances were centred there. The husband’s unfair conduct and the wife’s potential loss of juridical advantage were weighed, but did not make it unjust to stay the English proceedings.
3. The English divorce petition was therefore stayed once the wife’s solicitors had received £300 towards advice and representation in India. The Hemain injunction was released. The wife could apply to lift the stay if the Indian proceedings were unreasonably delayed.
4. Maintenance applications. The section 22 application had no independent life apart from the divorce petition. The Maintenance Regulation governed jurisdiction, recognition and enforcement, but did not create a free-standing substantive right to maintenance pending suit. The section 27 application was independent of the divorce and outside the statutory forum conveniens discretion, but the court retained an inherent discretion to keep it stayed where India was the more efficient forum. It was not dismissed, but would remain in being and be dismissed when decree absolute was pronounced in India, subject to a possible application if circumstances changed.