R v R (Divorce: Stay of Proceedings)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Court | Family Division |
EWBANK, J
Divorce – jurisdiction – concurrent proceedings in England and Sweden – spouses living in England – wife commencing divorce proceedings in England – husband commencing divorce proceedings in Sweden – husband applying for stay of English proceedings – factors to be considered – whether court would grant stay.
The parties, who were both Swedish, were married in Sweden in 1964. In Sweden property was held in community of property by spouses unless they agreed otherwise. A marriage contract entered into by the spouses at the time of the marriage arranged that there should be separation of property. In 1984 the parties came to England and bought a house subject to mortgage of over £600,000. In 1986 the spouses entered into a second marriage contract in Swedish form and registered in Sweden. Under that contract the wife was to be provided with about £85,000. In 1993 the husband was in some financial difficulties and the parties agreed to return to Sweden. However, the wife was concerned about the state of the marriage and consulted a solicitor. Although the wife had made no final decision about divorce the solicitor filed a petition for divorce on 22 April 1993. This was based on the wife's habitual residence in England and asserted that the marriage had irretrievably broken down. The petition was not served on the husband. The parties separated on 27 April 1993. On 9 June 1993 the husband filed a divorce petition in Sweden. On the wife's application the Swedish proceedings were stayed. The husband applied under para 9 of Sch 1 to the Domicile and Matrimonial Proceedings Act 1973 for the wife's divorce petition and the proceedings flowing from it in the English court to be stayed.
Held – refusing the husband's application: It was necessary to look to see what factors connected the case with England and with Sweden. The parties were Swedish, they were married in Sweden, and the marriage contract was in Swedish form. On the other hand, the parties had chosen England as their country of habitual residence for the previous 10 years. The wife proposed to continue living in England. It was not clear from the evidence whether the husband had moved to live in Sweden. It could not be said that the Swedish courts were more appropriate to deal with this case than the English courts. However, in giving effect to the balance of fairness, as required by para 9 of Sch 1 to the Domicile and Matrimonial Proceedings Act 1973, the case in favour of the English court was overwhelming. If the wife had to rely on the law applicable in Swedish proceedings she
would have the sum of £85,000 from the marriage contract, she might be awarded maintenance, and she would have the right to apply under Part III of the Matrimonial and Family Proceedings Act 1984 for provision in England following the Swedish proceedings. This would probably be limited to the equity of about £200,000 in the matrimonial home. In English divorce proceedings the wife could apply for property adjustment, a lump sum, and periodical payments. In those circumstances justice demanded that the English courts should deal with the divorce petition.
Statutory provisions referred to:Domicile and Matrimonial Proceedings Act 1973, Sch 1, para 9.
Matrimonial and Family Proceedings Act 1984, Part III.
Cases referred to in judgment:de Dampierre v de Dampierre [1988] 1 AC 92; [1987] 2 WLR 1006; [1987] 2 All ER 1.
Sim v Robinow (1892) 19 R (Ct of Sess) 665.
Howard Shaw for the husband.
Timothy Scott for the wife.
MR JUSTICE EWBANK.This is an application by the husband for an order under para 9 of Sch 1 to the Domicile and Matrimonial Proceedings Act 1973; that is to say, it is an application by the husband for his wife's divorce petition and the proceedings flowing from it to be stayed in England. The husband is Swedish, aged 53. He is said to be a rich man who has assets in England and in Sweden (and probably elsewhere). He says he is no longer a rich man. It is pointed out that he is still servicing a mortgage of over £600,000 in relation to the matrimonial home in England. The wife is 52. She was also born in Sweden. She is now said to be destitute: she is on income support; she is receiving no support from her husband; she is still living in the matrimonial home, but that is up for sale. The question whether there should be a stay or not of the English proceedings will determine, in effect, the level of support that the wife can hope to get from the husband.
The husband and wife were married in Sweden in 1964, 30 years ago, when the wife was 22 and the husband was 23. They entered into a marriage contract at the time of the marriage. In Sweden the property is held in community of property by the husband and wife unless they agree otherwise. The marriage contract arranged that there should be separation of property and that marriage contract was registered in accordance with the law of Sweden and is apparently a valid marriage contract providing for separation of property as between husband and wife. The wife has asserted in these...
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