Anglo-Australian Marriages

by Michelle McDermott on February 7, 2014

Michelle McDermott

An important judgment has been handed down in the United Kingdom which has implications for those parties in Anglo-Australian marriages.

In the case of Mittal v Mittal [2013] EWCA Civ 1255, the Court of Appeal held that the English High Court can grant a discretionary stay of English divorce proceedings where there are rival proceedings in a more appropriate forum (known as forum conveniens).

A bit of background first. The Brussels Regime is a set of rules regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals resident in different member states of the European Union (EU) and the European Free Trade Association (EFTA). It has detailed rules assigning jurisdiction for the dispute to be heard and governs the recognition and enforcement of foreign judgements. Brussels I Regulation (Council Regulation (EC) No 44/2001 (“Brussels I”) applies to civil or commercial matters.

As regards family law, there are 28 European countries who are Member States of Brussels II Revised (Council Regulation (EC) No 2201/2003 (“BIIR”). To put it in its simplest form, the rule in BIIR amongst 27 of the 28 Member States (Denmark being the exception) is that if you issue Court proceedings first, then wherever you issue is the country in which the proceedings will be heard and determined. Whilst working the UK, I had a number of matters where there was, effectively, a ‘race to the line’ to ensure that we issued first. Quite literally, it can come down to a matter of minutes!! Whilst the parties in this case were Indian nationals, India (like Australia) is a “Non-EU” country. Non-EU countries are not bound by the “first to issue” rule contained in BIIR. The rule in Australia as regards jurisdiction, again in its simplest form, is that Australian Courts will determine a case unless it can be shown that Australia is a ‘clearly inappropriate forum’.

The facts of Mittal can be summarised as follows. The parties married in India in 2003 and their daughter was born in India in 2004. The family lived in India until Mr Mittal obtained a job in England. He relocated to England in October 2006. Mrs Mittal and the daughter followed in February 2007. The parties separated in September 2009. Mrs Mittal left England in August 2010, following an unsuccessful immigration appeal. Mr Mittal returned to India permanently in April 2012.

Mr Mittal issued divorce proceedings on 31 August 2009 in Uttar Pradesh, India. Mrs Mittal was aware of those proceedings by, at the latest, October 2009. However, on 1 February 2010, Mrs Mittal began proceedings against Mr Mittal in England for maintenance. On 21 November 2011, more than 2 years after Mr Mittal issued his divorce petition in India, Mrs Mittal issued a divorce petition in London.

Mr Mittal applied to the English High Court for a stay of the English divorce proceedings on the grounds that proceedings were pending in India and that India was a more appropriate forum for the divorce. Mrs Mittal argued that the English Court had no jurisdiction to stay the English proceedings. She relied on the case of Owusu v Jackson which was a European Court of Justice decision that determined that the Courts of an EU member state had no power to stay their proceedings on the basis that another forum outside of the EU would be the more appropriate forum for the dispute. (NB – Owusu v Jackson had been decided under the Brussels Convention, which preceded Brussels I). The High Court granted Mr Mittal’s Application.

Mrs Mittal was granted leave to appeal and the matter came before the UK Court of Appeal. In summary, the Court of Appeal found that the case of Owusu v Jackson had very little to do with this case as it had been determined in the context of a convention regulating activity in the commercial field. The Court of Appeal agreed with the decision of the High Court to grant a stay of the English proceedings.

This is a very important case for Australia as this is the first time the Court of Appeal has considered the applicability of Owusu v Jackson to divorce proceedings. The new decision confirms that the EU does not purport to legislate for the rest of the world beyond Europe. If proceedings are issued appropriately in Australia, then the English Courts and, indeed other EU Courts, can grant a stay of proceedings which may be filed subsequently to those filed in Australia.

Please do not hesitate to contact Armstrong Legal if you have any queries with respect to an International family law issue.

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