De Dampierre v de Dampierre
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman,Lord Ackner,Lord Goff of Chieveley |
| Judgment Date | 02 April 1987 |
| Judgment citation (vLex) | [1987] UKHL J0402-1 |
| Date | 02 April 1987 |
| Court | House of Lords |
[1987] UKHL J0402-1
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Ackner
Lord Goff of Chieveley
House of Lords
My Lords,
I have had the opportunity of considering in draft the speeches to be delivered by my noble and learned friends Lord Templeman and Lord Goff of Chieveley. I agree with them and for the reasons they give would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Templeman and Lord Goff of Chieveley. I agree with both of them, and for the reasons which they give I would allow the appeal.
My Lords,
The appellant husband, Count Elie de Dampierre, instituted divorce proceedings against the respondent wife, the Countess Florence de Dampierre, in the Tribunal de Grande Instance in Paris. The wife then instituted divorce proceedings against the husband in the High Court in London. The husband applied to the High Court to stay the English proceedings.
Where there are concurrent proceedings in England and in another jurisdiction in respect of the same marriage, section 5(6) of the Domicile and Matrimonial Proceedings Act 1973 applies, and paragraph 9 of Schedule 1 to that Act, provides that the English proceedings may be stayed if it appears to the court
"(1) …( 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 [another jurisdiction] to be disposed of before further steps are taken in the proceedings [in England] … (2) In considering the balance of fairness and convenience … 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."
The facts which are relevant for the purpose of considering the husband's application to stay the wife's English divorce proceedings are not in dispute. The husband was born on 13 September 1952 in New York. The husband's nationality is French, he was educated in France and he undertook military service in the French army. At the death of his uncle, now aged 80, the husband will become head of a family which, since 1850, has owned and occupied the Chateau de Plaisance at St. Genis de Laintonge and a surrounding estate where the family carry on the business of producing cognac for sale in Europe and elsewhere.
The wife was born on 13 October 1955 in Lyons. The wife's nationality is French and she was a student in Paris when she married the husband in December 1977 in civil and religious ceremonies. The wife's parents were then, and are now resident in Paris.
In 1979 the husband and the wife moved to London where the husband was involved in marketing cognac produced on the family estate. The only child of the marriage, a son, Aymar, was born on 20 January 1982. The husband purchased 113A, Old Church Street, Chelsea, about 1982 as the matrimonial home. In November 1984 the wife established an antique business in New York where the husband had family and business interests. In March 1985 the wife took Aymar to New York, and in May 1985 informed the husband that she did not intend to return to London. There followed the institution of the husband's divorce proceedings in France on 22 May 1985, the wife's divorce petition in England on 19 July 1985, and the husband's application to stay the wife's proceedings in England on 8 August 1985. The husband alleges desertion. The wife denies desertion and seeks divorce on the grounds (denied by the husband) that he was ungenerous, selfish and cruel and has committed adultery.
In September 1985 the husband and the wife appeared in person before the matrimonial judge of the Tribunal de Grande Instance in Paris for a conciliatory hearing. The judge accepted jurisdiction although the wife objected; her objection is now the subject of an appeal by her in the French appellate courts. Reconciliation proving impossible, the matrimonial judge allowed the husband to proceed with his divorce petition and made provisional orders whereby the wife was given custody of Aymar in New York, the husband was allowed to have Aymar in France for a period of about 12 weeks in each year and the husband was ordered to pay maintenance to the wife for herself and Aymar in sums exceeding £22,000 per annum.
The President of the Family Division, Sir John Arnold, dismissed the husband's application for a stay of the English proceedings on 11 December 1985. His decision was upheld by the Court of Appeal (Dillon and Croom-Johnson L.JJ.) on 5 June 1986. Since then the husband has sold his London house and has returned to France but he was constrained by the wife and the English court to leave £174,000, part of the proceeds of sale of the London house within the jurisdiction, pending the outcome of this appeal against the refusal of the courts below to grant a stay of the English proceedings.
There is no dispute between the parties about the inevitability of a divorce which can be pronounced indifferently in London or Paris. There is a dispute about maintenance although for the time being that dispute has been solved by the order of the matrimonial judge in Paris. There is a dispute about the future of Aymar. The husband wishes Aymar to be educated in France at some stage and to succeed to his father's title, interests and family obligations and traditions in France. In short, the husband says that Aymar is French. The wife can hardly deny this but wishes to change Aymar into an American. The dispute about Aymar may concern the courts of the United States where Aymar is now in the custody of his mother, and the courts of France where the husband resides and to which country Aymar, and possibly the wife, may return. The dispute over Aymar does not concern and cannot be solved by an English court.
The wife opposes a stay of her divorce proceedings in England and the courts below refused to grant a stay for one reason and one reason only. In divorce proceedings in this country the wife is likely to obtain substantial financial relief by way of maintenance and a lump-sum payment notwithstanding any responsibility she may bear for the breakup of the marriage. Under French law a wife is entitled on divorce to similar financial relief if the breakdown of the marriage is due to the conduct of the husband or if responsibility for the breakdown of the marriage is shared (as it usually is shared) by both parties. But a wife who is found to be exclusively blameworthy for the breakdown of the marriage may be denied financial ancillary relief save for maintenance payments which will enable her to provide a home for an infant child of the marriage in the style and manner appropriate to the expectations of the child and suitable for the comfort and welfare of the child. By prosecuting the English divorce proceedings the wife insures against the risk of the consequences which might ensue if she were found by the French court to be exclusively responsible for the breakdown of the marriage. The wife denies any fault on her part and blames the husband. But if the wife is found wholly at fault and the husband wholly blameless and if the French court decides not to award maintenance to the wife save for the purpose of enabling her to look after Aymar, the wife could then hope to persuade an English court to make further provision for her out of the sum of £174,000 which the husband has been constrained to leave in England for the time being. Alternatively, the wife might persuade the English court to award her the whole or part of the sum of £174,000 before the French court dealt with a claim to maintenance on behalf of the wife or Aymar out of the husband's assets in France.
The husband appeals to this House against the refusal of the President, supported by the Court of Appeal, to stay the wife's English proceedings. The husband's appeal can only succeed if the President and the Court of Appeal failed to apply the correct principles in declining to exercise the discretion to stay proceedings conferred by the Act of 1973 and if, applying the correct principles, your Lordships conclude that a stay should be granted.
The President and the Court of Appeal thought that if the wife might be financially worse off under French law than under English law she was entitled to pursue her proceedings in England.
The President relied on a passage from the speech of Lord Diplock in MacShannon v. Rockware Glass Ltd. [1978] A.C. 795. In that case a Scotsman living in Scotland, sought to pursue an action in England instead of Scotland for personal injuries suffered in the course of his employment in Scotland by a company registered in England. There was no danger of proceedings taking place in both England and Scotland. The Act of 1973 was remote and irrelevant. This House refused to allow the action to be continued in England. Lord Diplock in the passage cited by the President in the present case said, at p. 812:
"In order to justify a stay two conditions must be satisfied, one positive and the other negative: ( a) the defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and ( b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English court."
The Court of Appeal were not entirely happy about the reliance placed by the President on the MacShannon case, but themselves founded on a passage from the speech of Lord Diplock in the The Abidin Daver [1984] A.C. 398. In that case two vessels...
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