Part one: the preliminaries

I remember vividly the very first time I made an application for a Hemain injunction. The application, made in the Central Family Court, was on behalf of a party seeking an English divorce in circumstances where the other party, who had issued proceedings elsewhere, had applied for a dismissal and stay of the English petition on jurisdiction and forum non-conveniens grounds (whilst simultaneously seeking to progress their petition abroad).

The room was full of experts in international family law. I was instructed by the brilliant Peter Burgess of Burgess Mee. My opponent, the indomitable Professor Rebecca-Bailey Harris, remains one of the leading specialists of cross-border work at the Bar. We appeared in front of DDJ David Hodson OBE whose contribution to and expertise in international family law are well known. The all-star courtroom made the task at hand all the more of a challenge and presented me with a high bar for submissions.

An initial read of Hemain v Hemain [1988] 2 FLR 388 suggests a high bar for achieving a Hemain injunction. One needs to demonstrate that the respondent has behaved in a manner which is ‘vexatious, and oppressive, and an abuse of the proceedings of this court’. This left me with a slightly sinking feeling. However, as I hope to demonstrate, the bar is not as high as first meets the eye and the cases where a Hemain injunction was not granted had certain unique features.

The context

A Hemain injunction application is typically made in the context of jurisdiction and/or forum non-conveniens proceedings. It is designed to restrain the respondent from progressing their rival overseas divorce petition pending the English court’s decision whether to dismiss or stay the English petition. This is because when a respondent contests a divorce, the English divorce proceedings are for all intents and purposes temporarily stayed and the petition cannot progress any further until a determination has been made as to the merits of that contest. The basic principle is that it would be unfair for a respondent to then use that temporary stay, usually prompted by their decision to defend the petition, to race ahead in the rival jurisdiction and obtain an overseas divorce order before the English court has even had a chance to hear the substantive application for a stay or dismissal (usually theirs).

In the recent commercial case of Magomedov v PJSC Transneft [2024] EWHC 1176 (Comm), Bright J’s attention was drawn to the existence of Hemain injunctions, which the learned judge described as follows (at [88]):

‘Hemain injunctions are interim ASIs [anti-suit injunctions] of limited duration, which are intended not to bring the foreign proceedings to a permanent end, but only to make them pause while the English court deals with a jurisdictional challenge issued by the defendant in this country. Their purpose is to ensure that the parallel proceedings in the foreign jurisdiction, which have been commenced by that party as the claimant, do not steal a march over the English proceedings. The objective is simply to ensure that the challenge to English jurisdiction is not used unconscionably, as a way of delaying matters in England and so obtaining an unfair advantage. The Hemain injunction is a temporary device, designed to prevent injustice without a disproportionate effect on comity.’

Similarly, as was said by Munby J (as he then was), in R v R [2005] 1 FLR 386 at [49]:

‘The fundamental if unarticulated premise underlying the decision in Hemain v Hemain is that, where there are parallel proceedings in two different courts, fairness requires that neither party should be permitted to litigate the substantive issues in either court until such time as both courts, having disposed of any preliminary issues as to jurisdiction, are ready to embark upon a consideration of the substantive issues.’

Who does it bind?

It binds the respondent only. It is an in personam order. It does not bind an overseas court albeit it does constitute an interference in the court process abroad.

Where does the jurisdiction derive from?

The jurisdiction derives from Senior Courts Act 1981, s 37(1), which reads:

‘The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.’

Section 37(6) reads:

‘This section applies in relation to the family court as it applies in relation to the High Court.’

In short, one does not need to be before a High Court Judge to achieve a Hemain injunction.

What is the core test?

In Hemain v Hemain [1988] 2 FLR 388, May LJ confirmed at 392 that the core test is the balance of convenience test enshrined in American Cyanamid Co v Ethicon Ltd [1975] AC 396 that will be familiar to all from law school days and since.

Part two: the case-law

There are five main reported cases concerning Hemain injunctions: in two cases, the order was granted, and in three it was not.

By examining the reasons why, one can decipher the essential ingredients for a successful Hemain injunction application.

When you have truly parallel proceedings: the original Mr Hemain

Hemain v Hemain [1988] 2 FLR 388 is an Anglo-French case which remains (as the name suggests) the leading case.

The wife issued first in England and the husband issued a week later in France. The husband filed an answer contesting the English divorce and applied for a stay of the English proceedings.

The wife applied for an injunction requiring the husband to take steps to ensure that the French proceedings did not go any further until such time as the English court had determined his stay application. She succeeded. The husband appealed and failed.

The Court of Appeal found that the balance was wholly in favour of maintaining the status quo. At [392], May LJ commented:

‘One has to note that in effect what the husband has done is to obtain a temporary injunction in relation to the wife’s English proceedings, which is just the relief in respect of the French proceedings which, by resisting the application before the Judge below and prosecuting this appeal, he is seeking to deny her. That, in the present case, I think, is an injustice. It is, without using the epithets in too opprobrious a sense, vexatious, and oppressive, and an abuse of the proceedings of this court.’

From this case, we have the origins of the test I referred to at the outset but as can be seen by the facts of this case, these powerful words are not suggestive of a need for an exceptional set of facts for a Hemain injunction to be granted: this was a case with parallel proceedings in two different courts where one party made an application which had the effect of holding up one set of proceedings, whilst seeking to remain free to race ahead in his jurisdiction of choice. This is what we might term classic Hemain territory.

Beware of the second in time divorce application made at the 11th hour

By contrast, there is then the case of Bloch v Bloch [2002] EWHC 1711 (Fam). This was an Anglo-South African case save that the ‘Anglo’ component was very weak. The parties lived their married life in South Africa. The wife was from a wealthy family and the financial provider. The husband moved to England very shortly before separation. The wife issued divorce proceedings in South Africa. The husband fully participated in those proceedings and made substantive financial claims which were ongoing. Almost 10 months later, he issued divorce proceedings in England. The wife applied to strike his petition out as an abuse of process or in the alternative sought a stay. The husband responded with an application for a Hemain injunction (ex parte) and was successful. The wife appealed the decision and won.

The main reason why the wife succeeded in her appeal was the delay of 10 months between the start of the two sets of proceedings. Munby J (as he then was) distinguished Bloch from Hemain as follows:

‘[93] In Hemain v Hemain both sets of proceedings had been started about the same time, neither had progressed very far, the applicant for the Hemain injunction – in that case the wife – had done little in the foreign proceedings and had pursued her application for an injunction with diligence, and the plaintiff in the foreign proceedings – in that case the husband – had in fact commenced the foreign proceedings after the English proceedings had already began. In the present case, in contrast, the foreign proceedings came first and had progressed for many months with the active engagement of the husband before he ever sought to invoke the jurisdiction of the English court. Moreover, in the present case, the application is made at – indeed well beyond – the eleventh hour.’

It is worth noting that the husband’s excuse for issuing so late was that the English court did not have jurisdiction yet and he needed to wait for sufficient time to elapse before he could petition. This argument, understandably, did not find favour with the court.

There is no need to show that England is the natural forum (yet)

More akin to Hemain, is the case of R v R (Divorce: Hemain injunction) [2003] EWHC 2113 (Fam). This concerned a Danish husband and an American life who lived their married life in London. Each issued divorce proceedings without the knowledge of the other. The husband surreptitiously travelled to Denmark to begin legal separation proceedings and about a month later, the wife, also covertly, began divorce proceedings in England.

Upon being served with the Danish divorce proceedings, the wife immediately served her English divorce petition on the husband. The husband disputed the English court’s jurisdiction and made an application for a stay of the English petition.

The wife successfully applied for a Hemain injunction.

This case is on all fours with the original Hemain decision. It concerned truly parallel proceedings where one party was seeking to hold up proceedings in one jurisdiction whilst racing ahead in their jurisdiction of choice.

In the same case, Munby J (as he then was) said, at [54]:

‘In my judgment, when all that is sought is a Hemain injunction, in contrast to a permanent anti-suit injunction, there is no need to show that England is the natural forum. Typically the application for a Hemain injunction is made at a time when the court is yet to decide the issue of forum (non) conveniens. A Hemain injunction is merely an interim injunction to maintain the status quo, to preserve a level playing field, pending the determination of the application for a stay; in other words, pending the determination of the very question of forum.’

Readers will find that there is a useful sample draft order at [86] of the judgment which can be adapted as appropriate.

No duty the call the race leader back and international comity

S v S (Hemain) [2010] 2 FLR 502 concerned a British couple with a Middle-Eastern background. The husband divorced the wife by Talaq in Lebanon following which the wife signed a financial settlement agreement (on the face of it by consent). The husband then issued proceedings in Lebanon to have the Talaq registered and instructed English solicitors in England to liaise with the wife to ensure that the marriage is either also dissolved in England or that steps are taken to ensure the recognition of the Lebanese Talaq by the English court.

Some 9 months after the husband had pronounced the Talaq in Lebanon and many months after he began taking steps in England as set out above, the wife issued fresh English divorce proceedings.

In the Lebanese proceedings, the wife challenged the court’s jurisdiction and raised an issue as to undue influence with respect to the agreement. The court there was going to hear her arguments about this in due course.

The husband applied for a stay of the English proceedings in favour of the Lebanese proceedings and the wife countered with an application for a Hemain injunction. She was unsuccessful. Why?

First, she suffered from the same problem as Mr Bloch. She was too slow off the mark. Baker J (as he then was) said, at [28]:

‘I repeat that each case must turn on its own facts, but it will manifestly be much harder for a litigant to demonstrate that the other party is acting unconscionably where one set of proceedings has been started significantly later than the other.’

Secondly, the Lebanese proceedings were very much in progress and the court there was going to determine the wife’s application to challenge the Lebanese Talaq/settlement agreement. In those circumstances the Judge said, at [31], that:

‘For this court to make any order obliging the husband to take active steps to stay those proceedings in Lebanon would offend principles of comity and infringe the principles and policy underpinning the Hemain injunction.’

In my opinion, whilst this was supplied as a reason for not granting a Hemain injunction, given that a Hemain injunction is an in personam remedy, the point about international comity should not be taken too far and it is submitted that, on its own, the point should not carry significant weight without more (in this case, there was more). Indeed, I suggest that comity is only relevant if the other jurisdiction will in fact hear argument about the points which the opposing party wishes to raise and there is an ongoing process there.

Arbitration and choice of court agreements in prenuptial agreements

Lastly, there is the case of T v T (Hemain Injunction) [2012] EWHC 3462 (Fam). This concerned an American couple living in London. They had married in the USA where they had entered into a pre-nuptial agreement stating that the law of a specific state would govern the finances on divorce even if parties live in a different jurisdiction at that time and that any questions regarding validity, enforcement or interpretation of the agreement would be referred to a family lawyer in that state for arbitration.

The husband filed for divorce in that state and triggered the arbitration clause and the wife retaliated by issuing English divorce proceedings, contrary to the terms of the pre-nuptial agreement but on the basis that she intended to challenge that agreement in any event.

The husband applied to stay the English proceedings in reliance on the arbitration clause and on forum non-conveniens grounds. The American divorce proceedings were stayed (by a separate process) but the husband was pressing ahead with the arbitration. The wife applied for a Hemain injunction and was unsuccessful.

The Judge (Nicholas Francis QC, as he then was, sitting as a Deputy High Court Judge) at [35] (a) said:

‘the question is not whether it is unconscionable for the husband to take proceedings in the US but whether it is unconscionable for him to issue an application for a stay of the English proceedings and at the same time press ahead with proceedings in State A.’

This case clearly had unique features. The Judge said as much at [35]⁠(c):

‘in my judgment, it is this arbitration clause which makes this case different. An American couple took American advice and entered into an American pmA which contained an arbitration clause. That clause also provided a means of resolving any issue as to the validity of the pmA itself. This means that the wife would appear to have a proper forum for airing her case that she was pressurised into signing the pmA. I do not find that the husband is behaving vexatiously or oppressively by invoking the arbitration clause in the pmA.’

It is also important to note that Dicey at 16–089 said:

‘The court also has power to grant an injunction restraining foreign arbitral proceedings, although it is a power that is only exercised in exceptional cases and with caution.’

Moreover, the arbitral proceedings in this case were to deal with preliminary issues such as jurisdiction and the enforceability of the agreement, not the divorce itself.

Readers will recall that in R v R, the court highlighted that ‘neither party should be permitted to litigate the substantive issues in either court’ but this does not stop either court from disposing of ‘any preliminary issues as to jurisdiction’ (or similar).

Conclusion

Drawing the threads together:

• The timing of the two rival divorce petitions is important – are they truly parallel suits? If not, this could be fatal to a Hemain injunction application.
• The extent and nature of the participation and involvement of the two parties in each of the proceedings is relevant (although often subsumed in the above).
• The terms of a pre-nuptial agreement may be relevant.
• There is no need to demonstrate England is the natural forum for the substantive suit but some regard may be had to this (as can be seen from the quote derived from T v T).