England Tops The League For Divorce Awards

English jurisdiction for divorce and financial claims can be worth fighting for as the difference in the level of financial award, depending upon where the claim is dealt with, can be vast. Disputes about which country should deal with a divorce and financial claims (known as forum disputes) are high-stake with international couples navigating through complex international, EU and domestic laws.

The facts of Mittal v Mittal [2013] EWCA Civ 1256 illustrate the allure of the English Court to financially weaker parties even where they have only the slightest of links here and the lengths to which they will go to try to hold on to this most generous jurisdiction.

The case concerned a forum dispute between England and India. Both parties were Indian nationals and they had married in India. They moved to England in 2006 and separated in 2009. Neither of them had any assets or income in the UK. Following separation the husband started divorce proceedings in India in 2009 and the wife issued her petition in England in 2011 despite the existence of the husband's Petition and the fact that she had returned to live in India in 2010.

The question was whether the English court was permitted to stay (i.e. stop) the wife's English petition in favour of the husband's petition in India on the basis that India was the more appropriate and convenient jurisdiction (forum non-conveniens) or whether the decision in the European Court of Justice in Owusu v Jackson (281/02) [2005] QB 801 applied. If the Owusu case did apply that meant that if the English Court had jurisdiction it had no discretion to refuse to exercise its jurisdiction i.e. it was compelled to deal with the divorce and financial claim.

This point was argued in JKN v JCN [2010] in which Mark Harper acted for the wife. That case involved a dispute between England and New York. The court held that the English court retained the power to grant a stay on the basis, in that case, that New York was the more appropriate forum.

In Mittal v Mittal the Court of Appeal approved the decision in JKN v JCN and decided that Owusu did not apply to family cases on the basis that...