Hemain Injunctions Explained

Date: October 9th, 2017 - Written by: Brookman Solicitors

 

Jurisdiction – the question of which country’s court has the authority to deal with a divorce – is often a matter of contention. It is particularly the case in international divorces where it may be legally possible to start proceedings in several different countries. We have discussed before how parties are motivated to fight for their jurisdiction of choice because rules on property division on divorce vary widely from country to country. A financially weaker spouse may be awarded a substantially greater proportion of the assets by an English judge than, say, a judge in Russia.

 

What Are Hemain Injunctions?

Sometimes a respondent to divorce proceedings in England may not co-operate with the English court. Instead he or she will try to gain an advantage by pursuing proceedings in a foreign jurisdiction that may produce a more favourable outcome. Hemain injunctions temporarily stop foreign proceedings, preserving the status quo until there is a full investigation of the issues of jurisdiction.

This type of family law injunction is rooted in the principle of fairness: Why should one party be able to argue the substantive issues in front of a foreign court before the issue of jurisdiction has been resolved and both courts are in a position to deal with all of the issues?

 

Are Hemain Injunctions Difficult To Obtain?

Yes. Even though these injunctions are directed at individuals they can nevertheless appear to restrict the powers of the foreign court. Indeed it was argued in one important case on the subject (T v T) that “the remedy cannot avoid being seen as an indirect interference with the process of the foreign court”.

So they are not granted lightly. To successfully apply for a Hemain injunction it is necessary to establish:

  • That the respondent is manipulating two different court proceedings in two jurisdictions for his or her advantage; and
  • In doing so is acting unconscionably, oppressively or vexatiously

These tests set the bar high. A respondent can legitimately engage in foreign divorce proceedings to get a better financial settlement when there are proceedings underway in England and not necessarily be acting unconscionably.

 

What Are The Limitations Of A Hemain Injunction?

Hemain injunctions are only an option if you are seeking to halt proceedings in a non-EU country. In addition, as we have described they are directed at the individual so they do not bind the foreign court. If it wishes the foreign court can continue as if no injunction were ever granted.

Hemain injunctions can be highly effective tools in appropriate circumstances. Because there is often a need to act with urgency to protect your position if proceedings are underway abroad, it is advisable to obtain specialist advice at an early stage.

 


 

Read more

 

International Divorce

 

Share:

Google Reviews

Brookman Solicitors

42 Reviews

Chris Mullins 10/12/2018

Henry Brookman and team have been fantastic from initial point of contact. They were able to schedule me a 'free telephone consult' at short notice in order to fit with my travel plans. I have now received sound written legal advice from both UK and Overseas perspective which has given me great reassurance and peace of mind. I am now understanding of the legal journey I am to face and have confidence that his team will be able to support me!

Syeda Rizvi 09/11/2018

I can’t recommend Brookman solicitors enough. I met with Mr Aziz Malik from Brookman solicitors for a case that had an international dimension to it, and found him extremely competent, professional, reassuring and empathetic. Knowing that my case was time sensitive, Mr Aziz was quick to initiate the legal process, kept me updated on the case progress, responded very promptly to all my correspondence, gave very sincere legal advice and addressed all my concerns in a very patient and responsible fashion. He was very involved in the case, and I knew from the get go that my case was in safe hands. Throughout the process, the law firm also kept me posted on the costs of the services I was getting, hence making the process very convenient and transparent for me. The barrister they appointed to represent me at the hearing(s) was equally competent, knowledgeable and articulate. Thanks to Brookman solicitors, the outcome of my case was exactly what I had wished for, and I am beyond delighted. I am extremely grateful to them for their services. Please keep up the good work!

Nir Ozer 07/11/2018

Henry Brookman was very honest and helpful with the professional quick legal service. It's wonderful to know you get a proper advice when needed. I definitely recommend this law firm.

Chris Saunders 26/10/2018

I engaged Brookman Solicitor's on a particularly complex topic related to international divorce. Henry and his team provided excellent support and his expertise was a critical factor in a successful outcome. I would not hesitate in working with this firm again, or recommending them to others.

Petra LP 25/10/2018

Replied to my query very quickly and was very helpful and understanding.