Trowell J. Application by the wife to continue a Hemain injunction made at short notice against the husband. H applied to set aside the injunction made.

Trowell J, examining the facts of this case in the context of the law and principles applicable to Hemain injunctions, concluded that the injunction should not be set aside. Rather, the Hemain injunction was being properly used as a tool to hold proceedings in fast-moving Territory Y until the English court could determine the question of jurisdiction.

Facts and litigation history; [7]–[30]

At the time of judgment W was 44 and H was 54. They were married in April 2016 and there were three children of the marriage, aged 8, 6 and 4.

W was born in England and held a British passport, though it emerged during proceedings that she held a passport for another nationality owing to her mother’s nationality. She had lived in Territory X since 2016, with H. H was born in a European country and held that country’s passport. He had also lived in Territory X (with W) since 2016, until shortly before these proceedings started.

This litigation

W filed an English divorce application on 8 July 2024. W told H about it on the same day, which he accepted. She also told H that she had tickets to fly to Territory X on July 13, though she disputed telling him that she was returning to the jurisdiction. Trowell J found that it was ‘quite reasonable’ for H to ‘hold out hope she would return’; [13].

W argued that H should have been aware of English proceedings as early as July 31. H made his application to Territory Y court on August 29, and did not service his acknowledgement of service and Answer to W’s application until September 3. The purpose of a Hemain is to stop one party ‘stealing a march’ on the other.

Proceedings in Territory Y advanced swiftly, with the first, second, and third hearings progressing in under a fortnight. W unsuccessfully resisted H’s application in Territory Y. On 7 October, a day before the fourth hearing in Territory Y was scheduled, Trowell J heard W’s application for a Hemain injunction (on short notice, which he labelled ‘effectively a without notice hearing’; [2]), and granted it subject to a return hearing; [28].

There was some dispute over where H could properly utilise the jurisdiction of the Territory Y court. To do so, H would have to either live or work in Territory Y. Trowell J concluded that, for the purposes of financial remedy proceedings in Territory Y, the evidence H had produced was sufficient.

H’s application to set the injunction aside; [37]–[39]

H argued that the injunction should be set aside for two reasons. First, as W failed to discharge the (high) duty of candour at the ‘without notice’ hearing, and second, because a Hemain injunction should not be made on the facts of the case; [4]. The judge rejected this.

Law; [40]–[45]

The statutory power to make a Hemain injunction derives from s 37(1) Senior Courts Act 1981: ‘The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so’; [40].

Trowell J acknowledged that Hemain injunctions go somewhat beyond ‘just and convenient’, per the statute, and examined the judgment of Baker J in S v S (Hemain Injunction) [2009] EWHC 3224 (Fam), in which Baker J summarised the principles to be considered when considering granting a Hemain injunction; [41]. Significantly, Baker J noted that:

‘the fundamental premise underlying the decision in Hemain v Hemain itself 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.’

The Matrimonial Causes Act 1973 and comity; [42]–[45]

A further point arose over the significance of timing, particularly in light of changes instituted by the Divorce, Dissolution and Separation Act 2020. H argued that obtaining a divorce in this jurisdiction was now a matter of timing alone, and that an applicant’s statement in support of irretrievable breakdown of a marriage was conclusive. Trowell J favoured W’s rebuttal: FPR 7.14 allows a respondent to object on the ground of jurisdiction, which H had done, causing the application to get ‘stuck’.

H’s second point related to the concept of comity. H argued that comity meant that the English court cannot advance an order simply out of fear that a foreign court may make a separate order. Trowell J disagreed, noting ‘Parliament has given the court that power [to restrain a party from applying for a foreign order] and if the circumstances are considered appropriate there is no bar on it being used’.

Application; [46]–[52]

Trowell J considered that ‘at the heart of the dispute in this case is whether… the conduct of the husband is vexatious, oppressive or unconscionable and that he is trying to steal a march by staying proceedings in this territory to deal with preliminary issues while unfairly proceeding in Territory Y’; [46].

W made her argument on three points:

1. H’s Answer mired her application in the preliminary issue of jurisdiction, requiring the court to take steps to hold a case management hearing. This was stopping the progression of her divorce in England and opened a window of opportunity for H to steal a march in Territory Y.
2. H used the time after W gave notice of her intention to machinate circumstances that would allow him to bring proceedings in Territory Y.
3. H deliberately kept quiet about his plans where W proceeded openly, including serving his acknowledgement out of time and in breach of the rules.

Trowell J favoured W’s arguments on all three points (albeit only partially on the second). On the second point, Trowell J found that whilst it was fair that H ‘emotionally was struggling during this period’, the timeline made it clear that H took advice upon receiving W’s divorce application. His job offer and rental property in Territory Y was justifiable on its own, and may not have been vexatious, but needed to be considered in the broader context of the case.

H made several points in favour of his position. In summary, he argued that:

1. H had chosen Territory Y court as it operated outside of the Islamic court of Territory X, where the parties had spent their married life. Trowell J did not find this a ‘forceful argument’.
2. W had such a weak case on forum conveniens that Trowell J should have discretion to refuse an injunction. Trowell J found that as W and the children were now domiciled in England, she had ‘at the very least the core of a case’, and was not persuaded.
3. That Part III of the Matrimonial and Family Proceedings Act 1984 could be used to ‘top up’ any award made in Territory Y. Trowell J was not convinced; the alternative was to simply deal with financial relief in this jurisdiction, reducing time and money spent on proceedings.
4. That this case was comparable with S v S, factually. Trowell J thought of this that W made the better point, namely that H’s proceedings were ‘not merely second in time but are reactive to the wife’s proceedings’.

Conclusion; [53]–[62]

The Hemain injunction was to continue until the question of jurisdiction could be determined in the English courts.

Trowell J found that the preliminary issue of jurisdiction had to be dealt with before the substantive issue – the parties’ divorce – could be dealt with. H’s conduct was, in this case, vexatious. He had stymied W’s application for divorce by using the notice period he had to bring rival proceedings in Territory Y, leaving her ‘stuck in a the mire of his making’.

H could not be allowed to progress the Territory Y application unchecked, irrespective of whether his argument that Territory Y was the better jurisdiction was correct.