T v B

A Hemain injunction is an interim measure designed to preserve a level playing field while competing courts determine jurisdiction or forum. The applicant need not establish that England is the natural forum. The court must examine whether the respondent’s conduct, viewed in context, is vexatious, oppressive or unconscionable. It is insufficient merely to show that a respondent is contesting proceedings in England while continuing foreign proceedings. An injunction may be justified where the respondent raises a preliminary jurisdiction or forum issue that stalls the English proceedings, while using the resulting time to advance rival proceedings abroad and obtain a forensic advantage. Comity remains relevant and requires caution. The injunction binds the party personally and may continue until the English jurisdiction issue is determined.

The wife applied for an Hemain injunction against the husband. The parties had married in England but lived with their children in Territory X. After the wife brought the children to England and issued an English divorce application, the husband disputed the English court’s jurisdiction and commenced divorce proceedings in Territory Y.

The wife sought continuation of an interim injunction restraining the husband from advancing the foreign proceedings. The husband sought its discharge, alleging inadequate candour and contending that his conduct was not vexatious, oppressive or unconscionable. The central issues were whether the wife’s non-disclosures justified discharge, how the post-2020 divorce procedure affected Hemain relief, and whether the husband was obtaining an unfair forensic advantage by contesting the English proceedings while pursuing Territory Y proceedings.

1. The injunction continued. The court held that the wife had not failed in candour so materially as to justify setting aside the without-notice order. The identified errors and omissions were either disclosed, immaterial to the interim issue, or matters for the substantive welfare or jurisdiction proceedings.
2. The court adopted the framework summarised by Baker J in S v S (Hemain Injunction) [2009] EWHC 3224 (Fam). A Hemain injunction is interim. It preserves a level playing field pending determination of jurisdiction or forum and does not permanently restrain foreign proceedings. It is unnecessary at this stage to establish that England is the natural forum.
3. The relevant question is fact-sensitive. Continuing foreign proceedings while seeking to hold up English proceedings may be legitimate in some circumstances, but may also be vexatious, oppressive or unconscionable. The vice lies in seeking a forensic advantage by disputing the English forum and delaying the English proceedings while progressing substantive proceedings abroad.
4. The husband’s Answer, which disputed jurisdiction and raised forum conveniens, stalled the English divorce application and operated in substance like a stay application. His foreign proceedings were reactive to the wife’s English application, and he had concealed his plan to issue them. Taken together, those circumstances created an intention to advance the Territory Y proceedings while the wife remained stalled in England. That conduct was vexatious on the facts.
5. The amendments made by the Divorce Dissolution and Separation Act 2020 did not prevent this analysis. The Family Procedure Rules 2010 required an Answer where jurisdiction was disputed, with the consequence that the English application required case management before progressing. The power under section 1(8) of the Matrimonial Causes Act 1973 could, in an appropriate case, be used to shorten the statutory period, although comity would remain a relevant factor.
6. The Hemain injunction was ordered to continue until determination of the jurisdiction issue in England.