Factual and Procedural Background
The parties, both domiciled in New Zealand, were married in 1990 and have three adult daughters. Over the years, they lived in various countries including New Zealand, England, Australia, the Philippines, France, and ultimately England. The wife settled permanently in England by May 2015, where she now works as a specialist nurse and has been granted British citizenship. The husband moved to England in 2016 for employment and to be near the family.
In 2017, the relationship irretrievably broke down. The wife filed a divorce petition in England in August 2017, asserting habitual residence in England and Wales. The husband filed dissolution proceedings in New Zealand in September 2017, asserting domicile there and seeking concurrent financial proceedings. The husband applied for a stay of the English proceedings in favor of the New Zealand jurisdiction.
The English court initially adjourned financial proceedings pending determination of the stay application. The New Zealand court dissolved the marriage by order in December 2017, subject to a hearing requested by the wife to rescind that order on the basis that the parties had not been separated for two years. The hearing was scheduled but later adjourned at the husband's request. Both parties have engaged legal representation in both jurisdictions.
Legal Issues Presented
- Whether the English court should grant a stay of the divorce and financial remedy proceedings in favor of concurrent proceedings in New Zealand under the Matrimonial Causes Act 1973 and/or the court's inherent jurisdiction.
- How to balance the fairness and convenience to the parties in determining the appropriate forum for the resolution of matrimonial and financial issues, particularly considering the parties' domicile, habitual residence, and connections to England and New Zealand.
- The application of the forum non conveniens principle in the context of concurrent matrimonial proceedings in different jurisdictions.
Arguments of the Parties
Appellant's (Husband's) Arguments
- Both parties are domiciled in New Zealand, which is the proper and convenient forum for the divorce and financial proceedings.
- The parties have substantive connections to New Zealand, whereas their connections to England are temporary and limited.
- Initial negotiations regarding financial matters were conducted in New Zealand, and New Zealand law was intended to apply.
- The wife’s filing in England was without prior notice and amounts to forum shopping.
- The English court cannot adequately resolve issues relating to assets held in New Zealand, especially those in a discretionary trust and pension assets.
- Proceedings in New Zealand would not impose significant additional time or expense, and witness evidence could be given by video link.
- If the stay is refused, there is a risk of conflicting orders, which the statutory provisions aim to avoid.
- The husband offered to proceed with divorce in England if financial matters were dealt with in New Zealand, which the wife declined.
Appellee's (Wife's) Arguments
- England is the more appropriate forum as both parties have been habitually resident here for over two years, and the wife settled permanently in 2015.
- The wife has strong personal, familial, and professional ties to England, including British citizenship and employment as a specialist nurse.
- The children predominantly live in England or the northern hemisphere and have no strong connection to New Zealand.
- Connections to New Zealand have been limited since 1994, with only occasional visits, and the wife has no financial ties there.
- Litigating in New Zealand would impose significant practical difficulties, including travel costs, time, and health concerns related to the wife's cancer diagnosis and mental health.
- The English court can resolve all financial issues in one set of proceedings, including property adjustment orders in respect of the Bristol property and assets in New Zealand.
- The wife intends to contest the New Zealand dissolution order on the basis that the parties were not separated for the requisite period.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Spiliada Maritime Corporation v Consulex Ltd (The Spiliada) [1987] AC 460 |
Established principles for granting a stay on grounds of forum non conveniens, including burden of proof and the assessment of the most appropriate forum. |
The court applied the Spiliada principles to assess whether New Zealand was the more appropriate forum and whether a stay should be granted. |
| De Dampierre v De Dampierre [1988] AC 92 |
Confirmed that the statutory discretion to grant a stay under the Matrimonial Causes Act 1973 should be exercised similarly to the inherent jurisdiction for forum non conveniens. |
The court used this guidance to approach the balance of fairness and convenience in deciding the stay application. |
| Butler v. Butler [1997] 2 FLR 311 |
Clarified that the statutory criterion for a stay is the balance of fairness rather than a strict preponderance of advantage. |
The court considered the balance of fairness as the guiding principle in its decision. |
| Mittal v Mittal [2013] EWCA Civ 1255; [2014] 1 FLR 1514 |
Confirmed that restrictions on staying proceedings under Brussels IIA do not apply where one jurisdiction is not a signatory. |
The court noted that Brussels IIA restrictions did not limit its discretion as New Zealand is not a signatory. |
| Tan v. Choy [2014] EWCA Civ 251; [2014] 1 FLR 492 |
Outlined the conditions for granting a stay under s.5(6) and Schedule 1 paragraph 9 of the Matrimonial Causes Act 1973. |
The court applied these conditions to determine whether to stay the English proceedings. |
| A v A and Another (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1 |
Defined the test for habitual residence in family law matters. |
The court applied this test to conclude that both parties were habitually resident in England at the time the petition was filed. |
| Rubin v. Rubin (2014) EWHC 611 Fam |
Provided factors to consider in relation to maintenance pending suit and legal services orders. |
The court ordered the parties to address these factors in forthcoming statements. |
Court's Reasoning and Analysis
The court accepted that the parties are domiciled in New Zealand and that a significant proportion of their assets remain there, including assets held in a discretionary trust. The court acknowledged the husband's argument that New Zealand was the original forum for negotiations and that the wife’s filing in England was a form of forum shopping. However, the court found that the wife had permanently settled in England by the date the petition was filed, and the husband had moved to England for an indefinite period, with both parties habitually resident in England and Wales.
The court emphasized the importance of the balance of fairness and convenience, concluding that England was the more appropriate forum. This was due to the parties’ current residence, the children’s connections to England, and the practical advantages of resolving all financial issues in one jurisdiction. The court found that the English family court was capable of addressing assets located in New Zealand and that the husband's concerns about jurisdiction and complexity were insufficient to justify a stay.
The court also considered the wife's health issues and the burden that litigating in New Zealand would impose on her, including travel difficulties and stress. The court found that these factors further supported continuing the proceedings in England. The court declined to issue any injunction restraining the husband from pursuing proceedings in New Zealand, noting that such matters were for the New Zealand court to determine.
Holding and Implications
The application for a stay of the English divorce and financial remedy proceedings was refused.
The direct effect of this decision is that the English court will continue to exercise jurisdiction over both the divorce and financial claims. The parties are to proceed with the English proceedings, including the exchange of financial statements and directions for further hearings. The decision does not preclude the New Zealand proceedings continuing concurrently, and the court made no order restraining such proceedings. No new legal precedent was established; rather, the court applied existing principles of forum non conveniens and statutory discretion to the facts of this case.