J v A [2023] EWFC 13221 July 2023

Published: 18/09/2023 15:10


H’s application for a stay of the English divorce proceedings commenced by W, in favour of his competing Nigerian divorce petition. H’s divorce petition was first in time. The judge found that England is – by a significant margin – the more convenient forum as both parties were habitually resident in England and Wales and had been so since 2011. Though H worked in Nigeria throughout the marriage, it was not the place he considered to be in his home after 2011. Both parties were also found to be domiciled in this jurisdiction; [69]–[70]. It followed that there were several grounds upon which the court had jurisdiction under s 5(2) of the 1973 Act. The fact that W could not easily travel to Nigeria to litigate there, as she was the primary carer of the three children, was a significant factor. By contrast, H would have no difficulty in coming to court in England in person or remotely if necessary.

It was noted that in some cases that the fact that a petition is first in time can be a factor in favour of the jurisdiction in which it is issued. However, this was not a material consideration in this case as W delayed filing her petition at the behest of H to avoid prejudicing his ability to travel, and he was on notice that she intended to apply. H issued his petition immediately and surreptitiously to prevent W from pursuing her legitimate claims before the English court. The fact that the proceedings in Nigeria had been more advanced than the English proceedings was given little weight as this was achieved through H’s manipulation of the English process. Also, when issued England was clearly the more appropriate forum for divorce, and H’s contention that the proceedings should be stayed lacked merit.

Finally, the English courts were much better placed to undertake an assessment of the needs of W and the children than a judge in Nigeria. The English courts would also be able to consider whether W was entitled to other assets built up during the marriage including any part of H’s business interests found to be matrimonial, which would not be available in Nigeria. It was unlikely that there would be any costs savings if the litigation took place in Nigeria as following any proceedings W would succeed in obtaining leave to pursue proceedings under Part III of Matrimonial and Family Proceedings Act 1984 Act, further increasing costs. H’s application for stay was therefore dismissed and his challenge to the jurisdiction of the English Court to entertain W’s divorce petition.

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