F v F
|21 January 1992
|21 January 1992
|Grand Court (Cayman Islands)
A. Turner for the petitioner;
N.W. Hill, Q.C. and G. Hampson for the respondent.
(1), ; , observations of Lord Pearce applied.
(2), ; , L.J. considered.
(3), ; , dicta of Sachs J. considered.
(4), ; , followed.
(5), ; , distinguished.
Matrimonial Causes Law (Law 9 of 1976), s.5: The relevant terms of this section are set out at page 23, lines 16–23.
Conflict of Laws-parallel foreign proceedings-stay of foreign proceedings-foreign proceedings stayed if would be vexatious or oppressive and Cayman Islands natural forum for suit-court to consider whether injustice to either party of granting or not granting injunction
Conflict of Laws-jurisdiction-forum conveniens-Cayman Islands natural forum for divorce suit because family ordinarily resident in Islands for 7 years, professional activities based here, acts giving rise to petition committed and witnesses in Islands, and relevant to consider parties” income relative to cost of living-English domicile of husband insufficient to challenge suitability
Family Law-divorce-cross-petition-cross-petition not beginning of fresh ‘suit,’ merely step in wife”s ‘suit’-husband not domiciled in Cayman Islands may cross-petition in suit properly begun by wife under Matrimonial Causes Law, s.5
The petitioner wife brought divorce proceedings in the Cayman Islands and sought an order restraining the respondent husband from continuing similar proceedings in England.
The petitioner and the respondent were US and English citizens respectively who had been living in the Cayman Islands for almost seven years before the commencement of the present proceedings. They had one child who was also ordinarily resident in the Cayman Islands. They owned a family home in England where the respondent was domiciled but in all significant respects they pursued their lives and careers in the Cayman Islands. At the time of the proceedings, only the respondent was employed.
The respondent first brought divorce proceedings in England, alleging unreasonable behaviour on the part of the petitioner. She then cross-petitioned in the Cayman Islands, alleging adultery and unreasonable behaviour, and obtained an injunction restraining him from continuing the English proceedings. That injunction was lifted to allow the parties to resolve ancillary matters but, the negotiations having failed, the respondent once again took steps to pursue the English suit and the petitioner was granted a further interim injunction to restrain him from doing so. The petitioner applied for the extension of the injunction.
The respondent submitted that he should be allowed to continue the English proceedings because (a) given a choice of forum, the principle
to be applied was that the suit should be heard in the place which was most convenient to all the parties and which would generally serve the interests of justice; (b) specifically, the court should take into account that it was he who had first brought divorce proceedings in a jurisdiction suited to his own interests and that, in particular, his wife appeared to be frustrating all attempts at a speedy settlement in the Cayman proceedings; (c) should only the Cayman proceedings be allowed to continue, he would be at a disadvantage because under s.5 of the Matrimonial Causes Law, he would be unable to cross-petition in the Cayman Islands whereas under Engish law his wife could cross-petition in England; and (d) the English proceedings were not, for these reasons, either vexatious or oppressive.
Held, granting the order to continue the injunction:
(1) The discretion to grant an injunction to restrain a party from choosing to bring or continue proceedings in a foreign court should only be exercised if the foreign proceedings would be vexatious or oppressive and the Cayman Islands appeared conclusively to be the natural forum in which they should be heard. Account should be taken not only of injustice to the other party if one were to be allowed to pursue the foreign proceedings but also of injustice to the party seeking to proceed abroad if he were not to be allowed to do so (page 19, lines 21–41).
(2) The Cayman Islands were the natural forum for this suit in all its stages. Although the respondent was domiciled in England, the family had been ordinarily resident in the Islands for nearly seven years and all the respondent”s professional activities were based here. The alleged behaviour upon which the petitions and cross-petitions were founded was supposed to have taken place in the Cayman Islands and the witnesses were also here. Although the family home in England was the most substantial asset to be divided when making the order for financial provision, it was equally relevant to that matter to consider the level of remuneration relative to the cost of living in the Islands, a matter which the Cayman court was best suited to assess. Moreover, given that the respondent was the income earner and the petitioner was not employed, it would be unduly onerous to subject her to the inconvenience and expense of the English proceedings and not at all justified on the sole ground that she was protracting the Cayman suit. Other factors that the court had taken into account, such as that it was the respondent who had first brought divorce proceedings against the petitioner in England where there would be no bar to her bringing a cross-petition, were not sufficient to outweigh the suitability of the Cayman Islands as the forum in which the suit should be heard (page 20, lines 16–25;page 20, line 34 – page 21, line 3; page 24, lines 23–28).
(3) It was not the case that the Matrimonial Causes Law precluded the respondent, as he was not domiciled in the Cayman Islands, from himself filing a cross-petition. A cross-petition would not be the beginning of a fresh ‘suit.’ Once jurisdiction had been assumed under
s.5 by virtue of the wife”s ordinary residence for two years, the court had jurisdiction to entertain any other step or other proceedings in the same ‘suit,’ including a cross-petition by the husband. Since he was therefore able to cross-petition, taken together with the fact that the Cayman Islands were the natural forum, it would be no hardship to the respondent for the petition to be heard here, whereas for him to pursue the proceedings in England would be vexatious and oppressive to the petitioner as she could not easily go to England. The court would therefore order that the injunction to restrain the English proceedings remain in force (page 21, lines 6–28;page 23, lines 10–40;page 24, lines 37–40).
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