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Substantial Connection Needed to Bring Divorce Proceedings
The English courts are a popular place to bring divorce proceedings because the financial settlements they order are usually much more equal than those made under other jurisdictions.
This has led to accusations that ‘divorce tourism’ is the result. However, a recent decision by the Court of Appeal shows that there are substantial limitations on who can bring a case here. In its ruling, the Court rejected a wife’s plea that a family judge had no power to block her divorce petition on grounds that neither she nor her husband had any substantial connection to England and Wales.
The ex-couple both lived in India and neither of them had any assets or sources of income in England or Wales. Although they had lived in England for about three years prior to their separation, the wife had to leave following an unsuccessful immigration appeal. The husband had a right to remain indefinitely in the UK but had moved back to India following the breakdown of the marriage.
The husband had launched divorce proceedings in India and there was no dispute that the courts of India were ready, willing and able to resolve the matter and that any orders that they made would be recognised in England. Nevertheless, the wife instituted parallel proceedings in England which were stayed by a family judge on the basis that India was the more convenient forum.
In challenging that decision, the wife’s legal team argued that binding authority emanating from the European Court of Justice required that, if the courts of England and Wales had jurisdiction to determine her petition, they were obliged to exercise it and that there was no discretion to refuse to do so.
Dismissing the appeal, however, the Court of Appeal found that the authority relied upon was of little relevance to the case. The Court confirmed that the family judge had discretion to order a stay of the proceedings.
Noting that its decision could not be regarded as ‘the peculiarity of an island race of common lawyers’, the Court found that its conclusion conformed to principles of European law and reflected the approach of other European Union member states.