SK v RR (Divorce: Forum Conveniens)

Under Schedule 1 of the Domicile and Matrimonial Proceedings Act (1973), the court may stay English divorce proceedings in favour of proceedings abroad where the statutory balance of fairness, including convenience, makes that appropriate. The statutory discretion is not fettered by the common-law forum non conveniens principles. The court should make a summary assessment of the connecting factors, including residence, accessibility, witnesses, language, costs, assets and the location of relevant conduct. The applicant generally bears the burden of showing an available competent alternative forum, after which the opposing party must show that justice requires the English proceedings to continue. An advantage to one party is not decisive. The interests of both parties and justice overall govern the decision.

There were concurrent divorce proceedings arising from the parties’ marriage. The husband issued proceedings in India on 26 April 2022. The wife issued proceedings in England and Wales on 12 December 2022, later reissuing them on 28 April 2023. The husband initially disputed jurisdiction but accepted at a hearing on 20 February 2024 that the English court had jurisdiction.

He then sought a stay, arguing that India was the more appropriate forum because of the parties’ Indian connections, family witnesses, alleged conduct, assets, costs and possible recognition issues. The wife relied on the parties’ residence and work in England, her limited resources and health difficulties, her safety concerns, and the location of the matrimonial asset and relevant conduct. The central issue was whether the English proceedings should be stayed for forum conveniens reasons.

1. Application dismissed. The husband’s application for a stay was dismissed, and he was ordered to take steps to withdraw the Indian proceedings.
2. Schedule 1 of the Domicile and Matrimonial Proceedings Act (1973) provides two routes. Paragraph 8 mandates a stay where its conditions are met, subject to paragraph 10(2). Those conditions were not satisfied. Paragraph 9 confers a discretion to stay where proceedings concerning the marriage continue in another jurisdiction and the balance of fairness, including convenience, makes it appropriate for those proceedings to be disposed of first.
3. The court adopted the principles in Spiliada Maritime Corporation v Consulex Ltd (The Spiliada) [1987] AC 460, as clarified by Butler v Butler [1997] 2 FLR 311, De Dampierre v De Dampierre [1988] AC 92, Vedanta Resources PLC v Lungowe [2019] UKSC 20 and Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel Ltd [2012] 1 WLR 1804. The court must undertake a summary assessment of the connecting factors and decide whether another available competent jurisdiction better serves the interests of the parties and justice.
4. The relevant factors included accessibility for the parties and witnesses, language, costs, residence, the location of assets and the place where relevant conduct occurred. The husband’s prior expenditure in India, and the possible involvement of Indian family members, did not outweigh the wife’s limited resources, health difficulties and access-to-justice concerns. The parties lived and worked in England, the only matrimonial asset was there, and the relevant inter-party conduct occurred there.
5. The husband provided no reliable evidence that an English divorce would not be recognised in India. Any recognition difficulty therefore had to be weighed against the other factors and did not justify a stay.