De Dampierre v de Dampierre
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 05 June 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0605-1 |
| Docket Number | 86/0509 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 June 1986 |
[1986] EWCA Civ J0605-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(THE PRESIDENT OF THE FAMILY DIVISION SIR JOHN ARNOLD)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Croom-Johnson
86/0509
MR. BRUCE MAULEVERER Q.C. and MR. ALLEN DYER (instructed "by Messrs. Price Bieber & Co.) appeared for the Appellant.
MR. MATTHEW THORPE Q.C. and MR. STEPHEN SHAY (instructed by Messrs. Richards Butler) appeared for the Respondent.
This is an appeal by the husband, the Count Elie de Dampierre, against a decision of the President of the Family Division given on 11 December 1985, whereby the President rejected an application by the husband to stay divorce proceedings instituted against him in this country by his wife, the Countess de Dampierre. The President's decision was interlocutory and he refused leave to appeal, but leave to appeal was granted in February of this year by the Master of the Rolls, sitting as a single judge of this court.
The jurisdiction to grant this stay arises under the Domicile and Matrimonial Proceedings Act 1973. Paragraph 9 of the First Schedule to that Act provides for discretionary stays. There is an earlier paragraph in relation to obligatory stays but that is not relevant to this case. Sub-paragraph (1) of paragraph 9 provides:
"(1) Where before the beginning of the trial or first trial in any matrimonial proceedings which are continuing in the court it appears to the court—
(a) that any proceedings in respect of the marriage in question, or capable of affecting its 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."
Sub-paragraph (2) provides:
"(2) 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."
Section 5(6) of the Act makes it plain that those provisions in the schedule do not prejudice any power to stay proceedings which is exerciseable by the court apart from the schedule. That has been referred to as the common law power to stay proceedings and it is important to have in mind that the scope of that power has been very much developed by recent successive decisions of the House of Lords.
The power is discretionary both at common law and under the schedule to the Act. Therefore, in this court we have in mind the observations of Lord Brandon of Oakbrook in The Abidin Daver (1984) A.C. 398 at 420 where he said:
"…the decision whether to allow or refuse an application for the stay of an action, even though the court has jurisdiction to try and determine it, is a discretionary decision for the judge of first instance to whom the application is made. It follows that, where the judge of first instance has exercised his discretion in one way or the other, the grounds on which an appellate court is entitled to interfere with the decision which he has made are of a limited character. It cannot interfere simply because its members consider that they would, if themselves sitting at first instance, have reached a different conclusion."
So far as the facts of the present case are concerned they are summed up in the judgment of the learned President. The husband and wife are both French nationals. They were married in France on 8 December 1977. There was a pre-nuptial agreement of 1 December 1977 governed, of course, by French law as they were both then resident and domiciled in France. By that agreement they agreed that their matrimonial property would be regulated by the system known as "separation de biens". Mr. Mauleverer for the husband has criticised the judgment of the learned President in that he did not refer to that agreement in his judgment or take it into account as a factor relevant to the exercise of his discretion whether or not to stay proceedings in England. As the argument has proceeded in this court, however, it has become entirely clear to me that the pre-nuptial agreement is merely part of the history of the case in that it provided that each party should own his or her own property and they did not have communal property. It is thus part of the framework which either court, French or English, will have in mind in dealing with their financial affairs, but it does not bear at all on the question which court ought to deal with those affairs or whether they should be dealt with by one court rather than the other. It is merely a matter of the matrix of facts out of which the dispute arises but is not relevant to the exercise of discretion.
Following the marriage on 8 December, which was a civil marriage, there was a religious marriage on 10 December 1977. Then, at the end of 1978, the married couple moved to London; on the husband's evidence that was for business reasons connected with the cognac business. The de Dampierre family own, through a company in which the husband is, we are told, the largest shareholder, a very substantial house of some 150 rooms in France in the Cognac area, and also a business of producing and marketing cognac. They acquired, on moving to England, a leasehold house in London in Old Church Street, Chelsea, which, we are told, is now of considerable value. That was the matrimonial home until the wife left for New York in November 1984. The only child of the marriage, a boy Aymar, was born in England on 20 January 1982.
The husband was born in New York in September 1952 of a French father and a Swedish mother but he opted for French nationality. The wife was born in France in October 1955 of French parents and has always been a French national. Part of the husband's inheritance was and is a holiday house at Oyster Bay near New York. In November 1984 the wife left for New York, with the husband's approval at that stage, to set up an antiques business in New York. She set up the business which she now runs there and she has acquired an apartment in Central Manhattan. In March 1985 the husband called on the wife to return to London to her matrimonial duties, but she did not do so. She did indeed return briefly, but apparently for the purpose of taking family jewellery to New York. That resulted in an order of Mrs. Justice Booth of 22 May 1985 on an ex parte application of the husband under section 17 of the Married Women's Property Act 1982 in relation to that jewellery. We are not concerned with those proceedings which have resulted in the jewellery being kept in safe custody for the present.
At the same time as the order was obtained from this court under the Married Women's Property Act, the husband presented a petition in France for the dissolution of the marriage. That petition is still pending. The petition was served on the wife on 18 June 1985, the court having by then fixed 17 September 1985 as the date for a reconciliation hearing in accordance with normal French procedure. That reconciliation hearing took place and it became apparent that there was no conciliation possible. At the hearing on 17 September the wife disputed the jurisdiction of the French court, but the French court ruled that it had jurisdiction and it proceeded to give certain interim directions for maintenance, in relation to custody, which it conferred on the wife, of the child Aymar and in relation to access to Aymar. The wife has appealed that decision of the French court that it had jurisdiction and we have been told by counsel on instructions that that appeal will not be heard until early next year. We, of course, express no opinion on whether the appeal has any prospects of success. It remains the case, pending the hearing of the appeal—and this is not in dispute—that proceedings in respect of the marriage in question are continuing at this moment in the French jurisdiction.
On 19 July 1985 the wife presented a divorce petition in this country for dissolution of the marriage and for the usual ancillary relief. Jurisdiction is founded on the husband having been habitually resident in England for at least a year before the issue of the petition. It is plain that it cannot be founded on domicile because the parties' domicile is French, or at any rate the husband's domicile is French. The wife's domicile is also French unless she has acquired a domicile of choice in New York since going to live there.
Mr. Mauleverer for the husband has sought to reserve a possible challenge to jurisdiction on the ground that in such an international case it is not right to say that the husband was resident in England. I do not express a concluded view on that. I merely say that it seems remarkably difficult to put it forward when the husband himself gave his English address in the French proceedings as his address and it has been given throughout in all the applications in these proceedings. Prima facie,...
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