Re A and Z (No 4) (Forum Non Conveniens) [2026] EWFC 203

Judgment date: 24 July 2026

https://caselaw.nationalarchives.gov.uk/ewfc/2026/203

McKendrick J.

Summary

The applicant’s opposed and unsuccessful application to stay the determination of the divorce and financial remedy proceedings on the grounds it would be more convenient for the issues to be litigated in the state of Florida, USA.

Background

This is the fourth judgment in these proceedings.

The applicant (‘A’) was born in the USA in 1972 and is 54 years old. The respondent (‘R’) was born in Hungary in 1992 and is 34 years old. When the parties met in Davos in January 2019, A was living in the USA (state unclear) and R was living in a rented flat in London.

By 14 July 2019, the parties were engaged to be married. On 20 July 2019, they married in Hawaii – there was no pre-nuptial agreement (PNA) – but R’s divorce from her previous husband had not been finalised. A further wedding was organised in Florida in April 2020 but was cancelled due to Covid. On 29 July 2020, the day before their third wedding attempt, A asked R to sign a PNA, which she did. The parties were married on 30 July 2020. On 3 October 2025, R applied for a divorce in England, asserting England and Wales had jurisdiction as R had been a habitual resident for at least one year before the application for divorce was issued.

An order for substituted service of the English divorce proceedings on A was made on 14 October 2025. R’s application for financial remedy was issued on 5 November 2025. On 7 November 2025, A filed her Answer to the divorce, headed ‘Without Prejudice or Submission to the Jurisdiction’ and made her application for a stay. A asserted there had been invalid service, and further, that even if England had jurisdiction, Florida would be more appropriate. A did not dispute R was habitually resident in England and Wales for one year prior to issuing for divorce. A’s issue regarding jurisdiction was invalid service.

A successfully applied for a hearing to determine the forum non conveniens dispute, and for a single joint expert in the law of Florida to consider, among other things, the validity of service of the divorce application in Florida. Until that point, A had been represented by leading counsel. However, thereafter, A chose not to comply with the orders made including an order for maintenance pending suit and legal services provision. Enforcement applications were made by R, as well as a successful application for permission to serve A by alternative means (email). Please see previous case summary Bartok v Brunner [2026] EWFC 146.

By the time of this hearing, A had failed to instruct the single joint expert in the law of Florida, or provide any evidence further to the directions made in March 2026 and then re-made in May 2026. A did not attend this hearing, and she chose not to be represented, which was surprising given it was a hearing she had requested, to determine her own application for a stay and to demonstrate Florida as being the more convenient jurisdiction.

A’s case

A filed two witness statements which, in summary and in respect of the jurisdictional issue, asserted that:

• there had not been proper service of the divorce application on her;
• that the PNA contained a section entitled ‘Jurisdiction and Forum’, and that the PNA required the couple to divorce in Florida;
• that Florida was more appropriate because she is a US citizen, they married in the US and deliberately negotiated a PNA in the US and for Florida law to apply;
• that the PNA was made in Florida and is subject to Florida law;
• all A’s assets are held in the US, and it is more convenient to obtain evidence about them in the US;
• any liquidation of assets in the US can only be achieved with US orders for sale;
• valuations or expert evidence will need to examine US assets based in the USA;
• witnesses in the USA can only be compelled to give evidence in the USA subject to US orders;
• many of her assets are owned with third parties, including US corporates and trusts, and those third parties would more easily engage with US process if the US courts had jurisdiction;
• enforcement would be easier in the US;
• that she has a record of where she spent her time for the last few years for tax reasons and could provide that document (this was never produced).

In a third witness statement, filed in breach of the directions, A contradicted her previous witness statements, asserting most of her assets were not held in Florida, but in Maryland and California.

R’s case

R filed seven witness statements, which, in summary and in respect of the jurisdiction issue, asserted that:

• she had lived in England since 2016 and intended to remain in England;
• she has a real and genuine connection to England;
• she has British citizenship;
• she works for a company in London and lives here with her dog;
• whilst the couple travelled to Florida, they never treated Florida as their main home or residence;
• A spent as much time in London as she could subject to tax regulations;
• A has never lived or worked in Florida and has no real connection to Florida;
• she had never visited the property that A asserted was her home in Florida;
• her Florida attorneys made clear that A does not meet the residency requirement and that issue was currently still being contested in Florida;
• that if there were to be divorce proceedings in Florida, the PNA upheld, and she receive no award, she will seek a ‘Part III’ award under the laws of England that would result in broadly the same result in England;
• it is still contested as to whether Florida even has jurisdiction to hear the divorce application.

The law

An application for a stay is brought pursuant to the Domicile and Matrimonial Proceedings Act 1973. The court paid particular attention to subsection 5(6), and paragraphs 8 and 9 of Schedule 1 to the Act.

Rayden and Jackson on Relationship Breakdown, Finances and Children formulate the test at paragraph 9.637:

• Stage 1: Whether the preconditions for the exercise of the discretionary jurisdiction are satisfied (i.e. whether there is a lis alibi pendens);
• Stage 2: Whether the balance of fairness (including convenience) is such that it is appropriate for the proceedings in the other jurisdiction to be first disposed of.

Or to put it another way, which jurisdiction should have priority;

• Stage 3: If those conditions are met, whether or not to order a stay.

Considered

1. De Dampierre v De Dampierre [1988] AC 92
2. The Spiliada [1987] AC 460
3. Butler v Butler (No 1) [1997] 2 FLR 311
4. RI v SSH [2010] 4 HKC 588
5. Ferrara v Ferrara [2026] EWCA Civ 512
6. SA v FA [2022] EWFC 115
7. Ella v Ella [2007] EWCA Civ 99

Analysis

McKendrick J’s analysis can be summarised as follows.

Stage 1

There is no dispute there are divorce proceedings in Florida and England and Wales. Therefore there is a lis alibi pendens.

Stage 2

Firstly, the language of paragraph 9(1)(b) of the Schedule to the 1973 Act is broad and deliberately states: the balance of fairness (including convenience) as between the parties to the marriage. It does not state as between the parties to the action, or the ‘action’ in the context of fairness.

Secondly, it is important to read the statutory terms in their proper context. This requires the court not to consider the action but the 12-month habitual residence of the parties to the marriage. Parliament intended a deliberate assessment of the factors that tied the parties to one of the related jurisdictions.

Thirdly, paragraph 77 of the Law Commission Report under the hearing ‘Discretionary Power to Stay Proceedings’ says:

‘the court should be given a wide discretion to decide what is fair, having regard to all relevant factors, such as the connection of the parties or the marriage with either forum and any delay, expense or inconvenience involved in taking parties or witnesses to another forum.’

Fourthly, Parliament granted the court a broad discretion to consider all factors that appeared relevant. This is an example of Parliament intending for the court to apply an updating construction of the 1973 Act.

Fifthly, The Spiliada involved a commercial dispute where damages in the form of compensation was an issue. Divorce involves status and is very personal.

Accordingly, applying the language of paragraph 9 of Schedule 1 to the 1973 Act, A failed to demonstrate that Florida is clearly the most appropriate – or priority jurisdiction.

Stage 3

This stage does not arise given the conclusion to Stage 2. However, McKendrick J sets out that even if that is wrong, in circumstances where A has failed to comply with court orders since April 2026, a stay would be unjust.