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.