Baldwin v Baldwin

Under the Maintenance Regulation, a choice of court agreement need not take the form of contractual offer and acceptance. The court may infer agreement from written communications and the parties’ conduct viewed as a whole. A party may also enter an appearance through a procedural step in the proceedings, although an appearance made solely to contest jurisdiction does not suffice. Forum necessitatis is available where proceedings cannot reasonably be brought or conducted in a closely connected third State and the dispute has a sufficient connection with the Member State seized. On the facts, jurisdiction existed under Articles 4, 5 and, alternatively, Article 7.

The husband, domiciled in England, issued divorce proceedings in England after the parties’ marriage and family life in Dubai and Bahrain. The wife accepted the English court’s jurisdiction over the divorce and applied for maintenance pending suit and litigation funding for herself and their child. The husband disputed jurisdiction under the Maintenance Regulation, contending that the wife had not agreed to English maintenance jurisdiction, had not entered an appearance, and could litigate elsewhere.

The matter was transferred from Tunbridge Wells County Court after District Judge Collins identified serious jurisdictional issues. The central questions were whether jurisdiction arose by agreement, appearance, or forum necessitatis, and whether the court could make interim maintenance and legal services orders.

The application to abandon the proceedings and re-list them before another judge was dismissed. The court then determined that it had jurisdiction to entertain the maintenance claims.

1. Choice of court. Article 4 did not require an express exchange using the language of jurisdiction or the Maintenance Regulation. Agreement could be established from written communications and the parties’ conduct. Considering the petition, correspondence, the wife’s abandonment of the Dubai proceedings, and the husband’s failure to protest when maintenance applications were repeatedly threatened, the court inferred a mutual and unequivocal agreement that the English court should determine maintenance issues. The husband’s petition, which sought maintenance orders, was not a meaningless precaution.
2. Appearance. The wife’s acknowledgement of service of the divorce petition alone did not confer Article 5 jurisdiction over the maintenance claim. However, the husband had accepted an order requiring him to file a statement of means for the maintenance pending suit hearing. That procedural step amounted to entering an appearance. He had not challenged jurisdiction within the applicable fourteen-day period.
3. Forum necessitatis. Article 7 was an alternative basis. Dubai was unavailable because the wife lacked funds and a residence visa. Indonesia had no close connection with the parties, and it was wholly unreasonable to expect the wife to begin proceedings there. Ethiopia had no closer connection than England. The wife’s financial circumstances, her commitment to the English proceedings, the husband’s conduct, and the existing English capital proceedings made litigation elsewhere practically insurmountable and gave the dispute a sufficient connection with England.
4. The findings under Articles 5 and 7 also established jurisdiction in relation to the child. A short-term maintenance pending suit order of £2,000 per month was made. The wife was held to fall within Matrimonial Causes Act 1973, s 22Z(a), for litigation funding purposes. The husband was ordered to pay the wife’s costs on the standard basis.

1. Tunbridge Wells County Court: District Judge Collins transferred the applications to the High Court after identifying serious jurisdictional issues.
2. High Court (Family Division): the court held that jurisdiction arose under Articles 4, 5 and alternatively 7 of the Maintenance Regulation, made interim orders, and ordered costs.