VS v KS

A discretionary stay of matrimonial proceedings may be granted where proceedings are continuing in another jurisdiction and that jurisdiction is clearly the more appropriate forum in the interests of fairness, convenience and justice. The applicant for the stay bears that burden. The court must consider all relevant circumstances, including connections, convenience, delay, expense, applicable law and the availability of effective disclosure and enforcement. A potentially better financial outcome in England is not decisive. Even where the foreign forum is clearly more appropriate, the stay may be refused if it would cause substantial injustice or deprive a party of a legitimate advantage. The proceedings were therefore stayed conditionally where the foreign court offered a fair and enforceable no-fault divorce process.

The husband commenced divorce proceedings in Monaco on 16 February 2022. The wife commenced divorce proceedings in England on 30 September 2022 and applied for financial remedies. The husband sought a stay under paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973.

The court had to determine whether Monaco was the natural forum, having the parties’ most real and substantial connection, and whether proceedings there would nevertheless cause the wife substantial injustice. The court also considered the effect of the husband’s proposed change from a fault-based to a no-fault divorce procedure in Monaco.

1. Stay granted conditionally. The wife’s divorce and financial remedy proceedings in England were stayed. Neither party was to proceed in Monaco under the fault-based procedure in Article 197 of the Monegasque Civil Code. If either party did so, the English court could revisit the stay.
2. There was a two-stage process. First, the court had to decide whether Monaco was an available forum with competent jurisdiction and was clearly or distinctly more appropriate. Secondly, if so, the court had to consider whether the wife had shown that a stay would cause substantial injustice, including deprivation of a legitimate personal or juridical advantage.
3. The husband had to establish that Monaco was the natural forum. The relevant assessment was broad and fact-sensitive. It included the parties’ real and substantial connections, convenience, witnesses, expense, delay, the governing law, financial disclosure and enforceability. The parties’ last marital home and principal family base had been Monaco. The husband had remained based there, while the wife’s move to London occurred in the context of the marriage breaking down.
4. The possibility that the wife might obtain a better financial result in England was not decisive. The evidence showed that the Monegasque court could obtain financial information, make enforceable orders and provide interim support. The proposed no-fault procedure under Article 198, by mutual consent, removed the principal concern that a fault-based divorce might reduce the wife’s financial outcome.
5. The fact that the Monaco proceedings were issued first was relevant, but only as one factor in the overall assessment. The wife had not established that proceedings in Monaco would deny substantial justice or that special circumstances required the English proceedings to continue.