Ella v Ella
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE MAURICE KAY,Mr Justice Charles,MR JUSTICE CHARLES,Lord Justice Thorpe |
| Judgment Date | 17 January 2007 |
| Neutral Citation | [2007] EWCA Civ 99 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 January 2007 |
| Docket Number | B4/2007/0004 |
[2007] EWCA Civ 99
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MRS JUSTICE MACUR DBE)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Maurice Kay
Mr Justice Charles
B4/2007/0004
MR B BLAIR QC (instructed by Messrs Freedman Green) appeared on behalf of the Appellant.
MR T SCOTT QC (instructed by Messrs Levison Meltzer Piggot) appeared on behalf of the Respondent.
This appeal concerns concurrent and competing proceedings for divorce and, above all, ancillary relief, in London and in Tel Aviv. The statutory provision which governed the outcome of the trial in the Family Division is to be found in schedule 1 of the Domicile and Matrimonial Proceedings Act 1973. Paragraph 9 of the schedule provides:
“Where before the beginning of the trial or first trial in any matrimonial proceedings other than proceedings governed by the Council Regulation which are continuing in the court it appears to the court –
(a) that any proceedings in respect of the marriage in question are capable of effecting is validity or subsistence are continuing in another jurisdiction; and
(b) that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings in the court or in those proceedings so far as they consist of a particular kind of matrimonial proceedings,
“the court may then if it thinks fit order that the proceedings in the court be stayed or as the case may be that those proceedings be stayed so far as they consist of proceedings of that kind.
“In considering the balance of fairness and convenience for the purposes of sub-paragraph 1(b) above the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed.”
It will be seen at once that the statutory provision confers on the judge a very wide discretion. The manner in which the discretion is to be exercised in matrimonial proceedings was considered and determined by the House of Lords in the case of de Dampierre v de Dampierre [1988] App Cases 92. The discretion in the present proceedings was exercised by Macur J in a judgment which she handed down on 21 December 2006, following a hearing which had commenced on 29 November in London and which concluded on 11 December in Birmingham. She heard approximately two and a half days of evidence and submissions.
I turn now to the history of the relationship between the husband and wife. The appellant wife is 41 years of age and originated in the Ukraine. She and her family moved to Israel when she was in her 20s and there she lived until moving to this jurisdiction immediately after her marriage. The husband is 52 and has been principally resident in this jurisdiction since his early 20s. Both the parties have dual Israeli and British nationality. Both the parties have strong connections with Israel. The husband owns a property in Israel. Both have family in Israel and both are bi-lingual in English and Hebrew. The meeting between them first took place in 1996 and pregnancy preceded marriage when the wife conceived at the end of July or the beginning of August. It was important to her that the child which she was carrying should be born in wedlock so the marriage was celebrated in Tel Aviv on 3 November 1996.
Immediately before the marriage the parties entered into a pre-nuptial contract which made clear provision that the law of Israel should apply on any questions affecting property as between the spouses. The Israel property law was to apply between the spouses and the provisions of the agreement were to apply in any place or at any time. The essential kernel of the agreement was for separation of property with future assets belonging exclusively to the spouse creating them. The agreement was reached at a time of considerable emotional turmoil for the parties. It is common ground that the wife was not independently advised and that the contract was drawn up by the notary who had acted for the husband for some time.
Following the marriage by mutual consent the family home was set up in London. It is here that the three children of the marriage were born and they are now, respectively, nine, eight and four years of age. They, too, have the benefit of dual nationality. There were frictions in the marriage that led to the wife visiting the Rabbinical court in London in November 2005. A file was opened, and my understanding is that there were one or two meetings conducted by the Beth Din in response to these frictions. It was a period of potential change not only in the relationship between the spouses but also in relation to centre of family life. The husband had business interests in Romania and clearly they were each contemplating the possibility that the children might be moved out of their London schools for a period of approximately a year. However, it seems that the marital difficulties were temporarily resolved by February 2006 and in April the husband moved to Romania, possibly for tax reasons, and thereafter was more a visitor to than a resident at the family home in Hampstead.
The repair to the marital relationship was of temporary duration and by the middle of May the wife consulted solicitors. The husband e-mailed the wife in mid-May, an e-mail to which Mr Blair QC, who appears for the wife, attaches considerable significance, for it contains the phrase:
“Remember our children are British Citizens first and shall therefore be staying in the UK and will continue their education there for as long as they are under age.”
At about the same time the wife wrote to the effect that she contemplated the possibility of moving as a single parent with the children to Israel if the marriage were dissolved. The wife's petition for dissolution here in London followed very swiftly after her first visit to her solicitors and it was founded on an allegation of conduct. It seems plain that the husband must have known of the commencement of London proceedings and it is the wife's evidence that she informed him during a visit to London which he made two or three days after the issue of the petition. His reaction was swift with the issue in the Rabbinical court in Tel Aviv of a competing petition also founded on conduct. It is not dissimilar to comparable pleadings in this jurisdiction. It sets up the basis of the jurisdiction, namely that the parties were citizens and residents of Israel at the time of marriage. Mr Blair has emphasised a number of assertions which plainly could never be made good and he has accordingly suggested that the pleading was disingenuous if not dishonest. However, it is a pleading signed by a lawyer, Mr Moran, and legal pleadings that depart from the reality are by no means uncommon in this field.
The rival petitions were duly served in early June and the husband's acknowledgment of service in this jurisdiction of 16 June stated:
“The appropriate jurisdiction for our divorce is Israel where there are current proceedings. I intend to apply for a stay of these proceedings.”
The wife, in reaction to service of the Tel Aviv petition instructed a lawyer, Advocate Tytunovich. It seems that he had discussions with Advocate Moran on 28 June, as a result of which an application was made to the Rabbinical court on the following day. The application is of some significance. It is headed “Notification of Agreement and Request to Postpone Session”. Paragraph 4(a) of the agreement reads:
“In order to enable the postponement the parties have agreed as follows: (a) the first session between the parties will be conducted before the honourable Rabbinical court and will precede any session to be conducted before the court in England without derogating from the generality of the above any adjudication of the question of jurisdiction in the matters of the parties shall first be conducted in the Rabbinical court.”
That application resulted in a consent order entered on 2 July, granting the application for postponement which was set to 31 July and confirming the parties' agreement as stipulated in paragraph 4 of the application. Now that in my judgment is a most significant factor in this case. Conventionally where there are competing concurrent proceedings, each applies in the unwanted jurisdiction for a stay and then decisions are taken, hopefully not entirely independently, by the jurisdictions in question. Here, far from applying in Tel Aviv for a stay on the basis that this was clearly a London case, the wife's duly instructed lawyer entered into an agreement which, if not accepting the jurisdiction of the Rabbinical court root and branch, made sufficient acceptance predictably to lead to root and branch determination there.
The further developments in the Rabbinical court are in my judgment also of significance. On 31 July the wife presented a radically different case. She was able to do so because Advocate Tytunovich had been dismissed to be replaced by Advocates Divon and Weinberg. The record of the proceedings on that day show Advocate Divon advancing a preliminary argument that London was properly and primary seized as a result of the opening of the file in the Rabbinical court. There were five other reasons why Advocate Divon submitted that London should be the court of primary determination.
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