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David Hodson on International Family Law: An ABC of forum disputes

Date:25 JAN 2013

International Family Law Practice by David Hodson

David Hodson

The recently reported High Court decision of AB v CB [2012] EWHC 3841 (hence the ABC!) contains helpful guidance on a number of aspects arising in family law forum issues and is a valuable addition to international family law case law. It is by an experienced judge, Bodey J, who has made good contributions in other aspects of international family law e.g. recognition of foreign marriages.

This is far from being the usual big money forum case. Indeed there were no assets apart from the husband's possible income in India. The parties were both born in India, Indian nationals, living in India, not working and with a child now eight. There was both an Indian divorce petition and an English divorce petition presented at a time when the husband was in England. For a no asset case, it had occupied several High Court judges on several occasions over many days with multiple applications. The wife had pro bono representation although she lost on almost every count. The court had to decide a number of forum issues raised by the wife arguing for English forum. This is only a basic summary:

1. Owusu

The wife said that England no longer had any discretion to refuse a divorce on forum conveniens grounds referring to Owusu [2005] QB 801. International specialists will be aware of this decision of the ECJ in a civil litigation case, effectively telling England that as a consequence of the Brussels II, there was no longer any discretion as to forum. It had to follow the location of the defendant. English family law practitioners and judges bridled at this EU imposition and refused to accept it. In JKN v JCN [2011] 1 FLR 826, Lucy Theis sitting then as a deputy High Court judge and in a judgement variously described as masterly and authoritative, made clear that discretionary forum jurisdiction remained. Owusu did not bind English family law, certainly outside EU cases. Amid loud cheers from family lawyers, others were critical. We waited with anticipation to the next appearance of this issue.

Bodey J was resolutely adamant in supporting the JKN argument. He roundly rejected the wife's submission that the English court has no discretion to exercise when determining a stay application. We now had a full-time High Court judge giving support. Importantly, he also referred to a recent commercial court decision, Ferrexpo v Gilson Investments [2012] EWHC 721 in which Andrew Smith J considered the Owusu jurisprudence and stated that he agreed with both the decision and reasoning of Lucy Theis as above.

Arguing in favour of Owusu is not dead. We still need an appeal court decision. But the opposition is now significantly stronger after AB v CB. For that we are exceedingly grateful to Bodey J and the wife's argument before him

2. Forum conveniens issues

The court has a wide discretion to look at all factors in deciding closest connection, the appropriate forum under para 9 Sch 1 DMPA 1973. It is always worthwhile reading judgements where judges weigh up the forum factors to gain some insights into judicial thinking (and so see paras 23-31 of Bodey J). Sometimes cases seem to scream out one jurisdiction above the other, just as this case shouts out it is an India case.

One element here was the wife's complaint that through misconduct the husband had prevented her from being in England and then he had tactically chosen to leave here and go to India, thereby creating the greater India connection. There is sometimes much unfairness and harshness in what goes on before or during litigation, by tactics or simply wrong behaviour. Unfortunately and ultimately judges have to deal with facts as they present at trial. Unravelling for misconduct is not easy. It happens, but not often.

Another element was legal costs in each jurisdiction. In India they are 10% or less of England. In a case with little assets this was very relevant especially as the husband offered to fund the wife's costs in India but not England.

The wife complained about delays and bureaucracy of the India court system. This is always a dangerous card to play. Judges live in an international community with much international judicial co-operation and some will be reluctant to make such findings about another country, especially as the next day at a conference somewhere in the world they may be with a top judge of that country. Barring real risks of corruption (more prevalent across the westernised world and elsewhere than most would care or want to admit) or gender and/or nationalistic bias, the "not in that country's courts" card is rarely successful in our close modern world.

3. Free standing ss 22-24 MCA claims

Next the wife argued that even if her English divorce was dismissed, her ancillary relief, financial order, claims remained alive. She argued the EU Maintenance Regulation, being separate to Brussels II which concerns divorce, allows free standing maintenance claims. So India could deal with the divorce and England the maintenance.

Bifurcation, as it is known, has occurred on a number of occasions including by consent where it has been acknowledged that a country not dealing with the divorce is better placed to deal with money. It had much use before Brussels II. But Bodey J was clear that the EU Maintenance Regulation gives jurisdiction, recognition and enforcement but it does not give power for free standing maintenance applications which is a matter of national law. If a petition is dismissed, maintenance pending suit and other ss22-24 claims (old style, literally ancillary to the suit) end as well. (Arrears continue to be payable of course).

This is a very helpful statement by the judge. Bifurcation is not dead. It is still useful and sometimes highly sensible and wise. But it will be hard and need particular facts if not by consent

4. s27 neglect to maintain

This is a rare beast. Some of us of a particular vintage may remember it from our earliest days of practice but I cannot remember in the past 2 decades or more. The wife had this claim alive. Was it also dismissed?  It does not depend on a divorce petition. The judge was sympathetic to stopping this as well. He felt there was no logical or good reason to maintain its existence. India was now dealing with the case. But he could find no obvious authority to do so: it rarely features on the international landscape. So he did not dismiss the application but he did retain the stay on it on the basis of the inherent jurisdiction to stay proceedings if another jurisdiction could more cheaply, conveniently and efficiently resolve matters, going back to de Dampierre in 1988.

He left open for another day and another case the vexed question of whether the English court still has stay discretion on free standing maintenance applications in view of the EU Maintenance Regulation. It did not apply here as a pre June 2011 application. So another party and lawyer can pick up this very greasy baton.

Practitioners are grateful to Bodey J for an excellent judgment and some helpful guidance and, perversely because the wife lost on almost all issues, the wife's pro bono lawyers.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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