Mittal: Clarifying where divorce proceedings should take place by John Bolch

Divorce|Family Law|October 21st 2013

In these days of families moving around the globe as and as and when they please, the place where any divorce proceedings should take place remains a question of central importance. The case of Mittal v Mittal, decided last week by the Court of Appeal, has hopefully clarified things a little.

The facts in the case were fairly straightforward. The parties were married in India in 2003, and they continued to live there until the husband came to this country in October 2006. The wife and their daughter joined him here in February 2007. They separated in September 2009; although the wife did not leave this country until August 2010, following an unsuccessful immigration appeal. In August 2009 the husband began divorce proceedings in India and in December 2011 the wife issued her own petition for divorce in England, presumably thinking that she would get a better financial settlement here. The husband returned to India in April 2012.

In October 2012 the High Court ordered that the wife’s English petition be ‘stayed’ (suspended), on the ground that India was the more appropriate place to hear the proceedings. The wife appealed against this order, arguing that the court does not have power to stay divorce proceedings in England and Wales where there are simultaneous proceedings in another non-European country.

This argument was based upon an interpretation of ‘Brussels II’, a European regulation which sets out rules governing jurisdiction in certain family proceedings. The argument was a little complex and I do not propose to go into the details here. Suffice it to say that her legal team claimed a 2005 decision by the European Court of Justice, referred to as ‘Owusu’, applied to Brussels II. That decision said that the courts of an EU member state have no power to stay their proceedings on the basis that another jurisdiction outside of the EU would be more appropriate.

The Court of Appeal dismissed the wife’s appeal, saying that Owusu did not apply to divorce jurisdiction under Brussels II. Whilst Brussels II does govern jurisdiction disputes between European member states, it does not mean that the English court has no discretion as to where a non-EU case should be heard. Accordingly, if the court considered, as it did here, that the family has a closer connection with the other country and that the proceedings should therefore go ahead there, it can stay the proceedings here.

The decision, I think, is to be welcomed. Not only has it clarified the law, it is surely correct that the jurisdiction having the closest connection with the family is the most appropriate. To allow two sets of proceedings to go ahead simultaneously in two different countries would have been absurd, not to mention expensive. The decision also means that European law is not elevating itself above the law in non-EU countries.

Nevertheless, that may not be end of it. Mrs Mittal has signalled her intention to appeal to the Supreme Court. The Court of Appeal refused her permission to appeal, but she may still renew her application for permission before the Supreme Court.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(5)

  1. Andrew says:

    This is such an obviously Indian case that it would be lamentable if the Supreme Court gave the English petition the time of day.

  2. Luke says:

    This clearly should take place in India, but I understand why the wife wants the case in England – it’s logical for her to try that if she is looking to maximise her take out of the marriage because for women England is the ‘Divorce capital of the World’.

  3. Tulsa Divorce Lawyer Matt Ingham says:

    Luke I thought Oklahoma USA was the divorce capital of the world??

  4. Joshua @ Horton Ballard Pemerton, PLLC says:

    I think that the courts did the right thing in this case. As you mentioned, it would be absolutely crazy to have the same case heard in two different courts, in two different countries. The case has to be heard on one, fair playing ground. Because the family started in India and spent most of their existence as a family in India, in this case, India is clearly the best place to hear the case. Thanks for the great read!

  5. Luke says:

    Matt,
    if Oklahoma gaols men who don’t have enough money to pay spousal support then you might have a case – that doesn’t happen here – but I would be surprised if women can take more assets in Oklahoma divorce courts than in the ones here.

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