SK v RR [2024] EWHC 1418 (Fam)1 May 2024

Published: 16/06/2024 16:35

HHJ Moradifar. The primary issue in this case was forum and convenience, which arose from two sets of divorce proceedings.

W joined H in the UK after marriage. H issued divorce proceedings in India first and W issued eight months later in England and Wales. The Indian court refused W’s application to adjourn those proceedings. W’s application for a conditional order was refused. The matter proceeded on a contested basis as H applied to have the proceedings in England and Wales stayed or dismissed on the basis that India was best placed to hear the divorce and ancillary issues arising from their separation. The court considered Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973, which provides two routes through which proceedings in this jurisdiction are stayed in favour of another. A helpful short summary of the relevant law and applicable principles are set out at [2] and [3].

H accepted that this court has jurisdiction to hear the parties divorce. Turning to forum conveniens, H argued that any divorce granted in this jurisdiction was unlikely to be recognised by the Indian authorities as the parties had a substantial connection to India and married in India. H had already incurred costs of proceedings in India and the future costs were likely to be far less than those that would be incurred in this jurisdiction. In support of his case, H strongly relied on allegations between the parties that would involve members of the extended family in India and argued that these allegations would require the court’s determination. On behalf of W, it was argued that the parties intended to permanently reside in the UK, the only matrimonial asset was here, and H conducted his business and worked in the UK when he issued the proceedings in India. W also feared for her safety if she had to return to India. Finally, the relevant conduct allegation involving the parties took place here and not in India.

Held, H’s application to stay these proceedings was dismissed as the evidence on connections to this jurisdiction and the balance of fairness fell in favour of continuing proceedings in England and Wales. Whilst H had already incurred costs of proceedings in India, this was balanced against the streamlined process of divorce that was available to both parties in England that had been delayed by H defending the same. The judge also gave weight to the likelihood of ongoing financial remedy proceedings when both parties resided and worked in this jurisdiction, and the fact that the only matrimonial asset was in the UK.

Even if there had been reliable evidence that the Indian court would not have recognised a decree of divorce in this jurisdiction, this would have to be balanced against all other relevant factors submitted on behalf of W. This included her participation in the Indian courts which had been curtailed by her limited financial resources, and health difficulties as supported by the medical evidence. Finally, the allegations strongly relied upon by H that involved the extended family in India were not relevant to the issue of the divorce and finances in this jurisdiction.

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