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How do Courts Decide Jurisdiction in Divorce?

Monday, 2 December 2013

The increasingly globalised nature of society affects both how the laws of different countries interact and the subsequent legal implications for individuals and businesses.

The ease of movement of people is one consequence of globalisation that has profoundly affected family law as a practice area. One particularly prominent issue that attracts family cases to the UK courts is divorce; the approach of the English courts to division of assets in divorce is believed to be a major factor in this trend. However, not every case that is brought before the English courts will automatically be allowed to proceed if the courts of another country are a more appropriate forum.

The recent Appeal case of Mittal v Mittal [2013] has helped to clarified the law on the proper jurisdiction for divorce proceedings.

Background to Mittal v Mittal [2013]

The case concerned an Indian married couple. They both lived in India and were married in India in 2003. They gave birth to a daughter in India in 2004. In October 2006 the husband moved to the UK and his wife and daughter followed in February 2007. The marriage encountered difficulties, and the couple separated in August 2010. The wife returned to India in August 2010.

Mr Mittal initiated divorce proceedings in India in 2009. In 2011 Mrs Mittal issued a petition for divorce under UK law. At that time Mr Mittal was living in the UK but he returned to India in 2012.

In the first instance the judge stayed Mrs Mittal's petition for divorce in the UK on the basis of forum non conveniens, namely that the Indian Courts were a more appropriate forum for the divorce proceedings.

UK Courts Retain Jurisdictional Discretion in Divorce Cases

The contentious issue on appeal was whether or not the judge had the power to stay Mrs Mittal's petition for divorce in the UK. Mrs Mittal argued that the judge had no discretion refuse to determine divorce proceedings if they were within the court’s jurisdiction and he could not therefore grant a stay.

Mr Mittal argued that the judge was acting within his powers and did have the jurisdiction to grant a stay.

The Brussels II Regulation (Council Regulation (EC) No 2201/2003) was central to the appeal because the EU Regulation governs the jurisdiction of a number of family law proceedings. The case of Owusu v Jackson was cited by Mrs Mittal as authority for the proposition that the Courts of an EU member State do not have the power to stay proceedings under the Regulation.

This argument was dismissed by the Court of Appeal which held that the lower court retained discretion in relation to where a divorce case should be heard if there were prior competing proceedings in a non-EU state. The court had concluded that the Mittal family had a stronger connection with India so proceedings should be heard there; it therefore rightly stayed the UK proceedings.

Implications of Mittal v Mittal

There are several important points to take away from the Court of Appeal’s decision in Mittal v Mittal regarding the law relating to the UK Courts' jurisdiction over divorce proceedings.

Firstly it confirms that the UK courts do retain discretion over jurisdiction in non-EU divorce cases. It also confirms that in cases where spouses initiate divorce proceedings in different countries, the court may have regard to which country the family has a stronger connection. Related to the latter point are the limits that the EU rules are faced with in non-EU cases where divorce proceedings have been commenced in a non-EU jurisdiction.

If you would like to discuss the implications of this case or you need advice in relation to other family law issues, Rollingsons has experienced solicitors who can advise you; please contact Jeetesh Patel via e- mail JPatel@rollingsons.co.uk or by telephone on 0207 611 4848.

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