The Court of Appeal very recently dealt with an interesting if complicated legal argument concerning foreign proceedings.  The case concerned a husband and wife, both Indian Nationals and both living in India.  They lived together in England for two years, from 2007 to 2009.  The wife moved back to India in 2010, and the husband moved back to India in April 2012.  However, he had already begun divorce proceedings in 2009 against the wife in India.  Over two years later, in 2011, the wife issued her own petition for divorce in England.  The English court had jurisdiction because at the time the husband was still living here.  On the other hand the Indian courts also had jurisdiction.

The courts in India could make consequential financial orders, and so could the courts in England, but almost certainly the English courts would be more favourable to the wife than the Indian courts would be.  That of course had to be the reason she filed divorce proceedings here.

The husband applied to stay the wife’s English petition.  He said that India was the more appropriate forum to hear the proceedings.  The wife appealed.  She (or rather her barristers) argued that the judge did not have the power to order a stay of the wife’s petition.

Now historically the English courts have always had a discretion to stay English proceedings if there are competing foreign proceedings concerning the same issue.  The test is a broad one, weighing up the factors as to whether the foreign courts would be better placed to hear the matter, whether a proper level of justice could be delivered, and overall whether it is the more appropriate forum.

However, the European Court of Justice in 2005 appeared to say that this discretion no longer applied by reason of the Brussels Regulation governing which countries courts had priority.  The European Court of Justice held that the Brussels Convention did not just apply between European Union States, it bound all EU Member States even in relation to non-member States.  The ECJ had decided that in hearing the case of Owusu –v- Jackson.  Mr Owusu was British, living in Britain.  So was Mr Jackson, but Mr Jackson owned a holiday villa in Jamaica.  Mr Owusu rented it for a short holiday, suffered a serious accident whilst on holiday, and sued Mr Jackson for compensation.  He filed the proceedings in England.  Mr Jackson applied to stay those proceedings on the ground that Jamaica was the more convenient forum.  The question for the ECJ was whether the court’s discretionary power to stay proceedings was compatible with the Brussels Convention, and it held that it was not.  It said that the rules of jurisdiction must be highly predictable and should guarantee certainty.

In this recent case though the Court of Appeal overruled the wife’s argument and upheld the stay.  It said that the Brussels II (Revised) Regulation that applies to matrimonial proceedings is worded differently to the one that governed Owusu –v- Jackson.

The leading judgment also noted with some relief that there was a similar decision made by the Cour de Cassation in France in 2009, and he dryly commented “the conclusion I have reached cannot, therefore, be regarded as a peculiarity of an island race of common lawyers.  It is one that is shared by our civilian colleagues in mainland Europe.”

One apparently throwaway remark in the judgment gives me some concern.  The leading judgment says that if the courts in India exercised their jurisdiction “…if they do so, orders of the courts in India will be recognised in England.”  One hopes that the Lord Justice did not think that financial orders would be enforced in England as a matter of right, because the law on that aspect is most uncertain.  Certainly a divorce granted in India, where the parties plainly had a real connection with India would certainly be recognised, but anyone relying on subsequent enforcement of financial orders may be in for a nasty surprise.

Got a question? Ask us now…

Kindly complete the form below to send an enquiry. Your message will be sent to one of our solicitors. Discretion is guaranteed.

Your Information

  • Consider including information such as: the name of your spouse (if relevant), the country you live in, the background to your problem.

  • This field is for validation purposes and should be left unchanged.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Over 2000 FREE
consultations and counting…

Our free consultation can help you more clearly understand the legal issues relating your case and what your options are to move forward.

Request your free consultation

Or send us an enquiry

I had a 30-minute consultation with Samantha Jago where she clearly explained all my options and followed up with a detailed email of notes. I would highly recommend if you need help to clarify where you stand and getting options for how you move forward.

Jun 2024   Katherine Davey

I recently had a one hour pro bono consultation with Samantha Jago. I was really blown away by how much she was able to digest in such a short period of time and even more so by the report which I received shortly after.

Apr 2024   S DF

I had applied for a free consultation and I was contacted in a very short timeframe. Thank you so much for the insightful and thorough consultation, Kevin Danagher. You made me feel at ease and you provided clear expectations with the initial info I had provided... I have now a much better understanding on my query.

Feb 2024   Sonia Accardi

We had a very useful first consultation with Amber Matheson today. Amber took the time to understand our (somewhat complicated) set-up, and offered good, understandable advice on next steps. She followed up with a very thorough email clarifying what we had discussed. Highly recommended.

Feb 2024   Lucie

Lovely friendly experience. All questions were answered so that I understood completely.

Dec 2023   Ali Catlin

Very balanced, fair and pragmatic advice. Thoroughly recommend!!

Nov 2023   James Elliott

Henry graciously provided his time for a consultation. I found him to be highly knowledgeable, empathetic and he provided excellent advice which put my mind at ease. Would highly recommend Henry and his firm.

Oct 2023   Allan Ang

Henry Brookman went above and beyond during the free consultation, and even overran the allocated time. He provided invaluable professional advice in a courteous manner. I recommend his firm without reservation.

Sep 2023   Mario Ignatov

I only had my initial free review with Amelia yet I already feel much more strengthened in my legal and financial position. I am currently reflecting on the steps I want to take to negotiate my desired outcome of the financial settlement but, when I am ready to use the services of a lawyer, Amelia is definitely the top on my list.

Sep 2023   Nahid Toubia

I had a zoom consultation with Lauren Moir and she was incredible. Very patient, insightful and reassuring. She also advised me based on my previous conversations with another firm and also clarified various positions I am in. Highly recommend.

Aug 2023   Gary Hawes

I was very impressed with the friendly, helpful and professional service offered by Brookman Solicitors. The generous advice and knowledge offered during the initial free consultation has enabled us to have a much better understanding of our case and plan a way forward.

Jul 2023   Peter Jackson

I had a first consultation with Kevin, who very diligently and professionally provided an exhaustive overview of the divorce process and the best approach for my specific case.

Jul 2023   Giulia Matteo

Great service and excellent advice at the initial consultation. I would certainly recommend and use in the future.

Jul 2023   Tom James

Google Reviews
Ask A Question

Contact Us

If you have questions, contact us now, we can help you.

Enquire Now

Or call us on +44 (0)20 7430 8470