Mittal v Mittal

The jurisdiction conferred by Council Regulation (EC) No 2201/2003 does not prevent an English court from staying matrimonial proceedings in favour of prior proceedings in a non-member state. The rule in Owusu v Jackson concerns materially different legislation and does not extend by analogy to such a case of lis alibi pendens.

For the purposes of Schedule 1 paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973, proceedings are “governed by” the Regulation only where the Regulation prescribes how the stay application must be decided. In any event, section 5(6) preserves the High Court’s general power under section 49(2) of the Senior Courts Act 1981 to stay proceedings.

The husband began divorce proceedings in India in August 2009. The wife, who knew of those proceedings by October 2009, issued an English divorce petition in December 2011. Both spouses were Indian nationals living in India by the time of the appeal. The Indian court’s jurisdiction, willingness to act and the recognition of its orders in England were undisputed.

Bodey J stayed the English petition on forum non conveniens grounds: [2012] EWHC 3841 (Fam). The principal question was whether he had power to do so, given that the English court’s divorce jurisdiction arose under Council Regulation (EC) No 2201/2003. A subsidiary maintenance issue under section 27 of the Matrimonial Causes Act 1973 was abandoned.

1. Appeal dismissed. Bodey J had power to stay the wife’s English divorce petition in favour of the prior Indian proceedings. His conclusion that India was the more appropriate forum was otherwise plainly correct.

2. Per Lewison LJ, with whom Jackson and Rimer LJJ agreed, Owusu v Jackson did not require the English court to exercise jurisdiction under Council Regulation (EC) No 2201/2003. Owusu concerned the mandatory jurisdictional language of a different regime, its objective of legal certainty and a case in which no competing foreign proceedings existed. It expressly left unanswered the effect of prior proceedings in a non-contracting state.

3. The family-law Regulation differed materially from the Brussels Convention and the Judgments Regulation. Article 3 afforded applicants several possible jurisdictional bases and used facilitative language. The Regulation accepted some diversity between national systems, contained discretionary machinery in article 15 and pursued a policy of avoiding competing proceedings. Those features meant that a discretionary stay in a case of lis alibi pendens was not inimical to the Regulation. The court approved the relevant reasoning in JKN v JCN [2010] EWHC 843 (Fam).

4. Schedule 1 paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973 remained available. In legislation concerned with stays, proceedings were “governed by” the Regulation only where the Regulation told the court how to determine the stay application. That applied to cases within article 19, which concerned concurrent proceedings in different member states, but not to the prior Indian proceedings. A wider construction would deprive paragraph 9 of practical effect.

5. Alternatively, section 5(6) of the 1973 Act expressly preserved powers exercisable apart from Schedule 1. The statutory scheme was therefore not an exhaustive code. Even if paragraph 9 had been unavailable, the judge could have granted the stay under section 49(2) of the Senior Courts Act 1981.

6. No reference to the Court of Justice was necessary. The wife’s appeal was dismissed.

1. Court of Appeal (Civil Division): The wife’s appeal was dismissed. The court held that the judge had statutory and residual power to stay the English divorce proceedings: [2013] EWCA Civ 1255.
2. Principal Registry of the Family Division: Bodey J stayed the wife’s English divorce petition because India was the more appropriate forum: [2012] EWHC 3841 (Fam); reported at [2013] 2 FLR 29.