Mantegazza v Mantegazza

Under paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973, matrimonial proceedings may be stayed where foreign proceedings concerning the marriage are continuing and the balance of fairness and convenience makes the foreign jurisdiction clearly more appropriate. The applicant bears that initial burden. If it is discharged, the other party must show that substantial justice will not be obtained abroad. Foreign proceedings remain continuing if begun and not finally disposed of. A pre-marital agreement selecting foreign law and courts is a significant factor, but its scope must be identified. The possible availability of a later application under Part III of the Matrimonial and Family Proceedings Act 1984 may provide a relevant safeguard.

The Husband applied under section 5(6) and paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 for a discretionary stay of the Wife’s English divorce petition. Parallel divorce proceedings had been commenced in Lugano. The parties had married in Switzerland and entered a pre-marital agreement selecting Swiss law, Swiss matrimonial-property arrangements and the Lugano court for disputes concerning patrimonial rights.

The central issues were whether the Swiss proceedings were continuing, whether the English court had jurisdiction over financial remedies, whether Switzerland was clearly the more appropriate forum, and whether the Wife would obtain substantial justice there.

1. The application for a stay was granted. The English divorce petition was to remain stayed and would be dismissed when a final decree was pronounced in Switzerland. The Wife had liberty to apply to lift the stay if the Swiss court declined to discharge its suspension of the Husband’s proceedings.

2. Paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 required the court to apply the forum non conveniens approach described in de Dampierre v de Dampierre [1988] AC 92. The Husband had first to show that Switzerland was clearly the more appropriate forum. If he succeeded, the Wife had to show that she would not obtain substantial justice there.

3. The Swiss proceedings were continuing. The proper test was whether they had been begun and had not been finally disposed of. A foreign suspension which could be reconsidered, including if the English court stayed its own proceedings, did not finally dispose of them.

4. Switzerland was clearly the more appropriate forum. The significant considerations included the Swiss pre-marital agreement, its choice of Swiss law and the Lugano court for patrimonial disputes, the parties’ marriage and long family residence in Switzerland, the location of the principal home and assets, the Swiss negotiations, the absence of significant English assets, and the absence at the relevant time of English jurisdiction over the Wife’s maintenance claim. The English petition’s priority was a factor, but its weight was reduced by the prior Swiss negotiations and unilateral filing.

5. The Wife had not shown that substantial justice would be unavailable in Switzerland. The Swiss court would enforce the separation-of-property agreement and had jurisdiction over maintenance and other relevant matters. The possible fallback of an application under Part III of the Matrimonial and Family Proceedings Act 1984 was relevant, but the court made no determination on its merits.