“Why don’t you come over to Europe and try to get a job here? I realise the visa may be an issue. You could use us as a base. We have two large bedrooms, plus the day bed in the lounge so we have space. I realise you don’t particularly want to be with me, but to be able to have a more constant relationship with your daughters would really help them.”
“Schedule 1 to this Act shall have effect as to the cases in which matrimonial proceedings in England and Wales are to be, or may be, stayed by the court where there are concurrent proceedings elsewhere in respect of the same marriage, and as to other matters dealt with in that schedule, but nothing in that schedule (a) requires or authorises a stay of proceedings which are pending when this section comes into force or (b) prejudices any power to stay proceedings which is exercisable by the court apart from the Schedule.”
“(1) 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 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, those proceedings be stayed so far as they consist of proceedings of that kind. (2) In considering the balance of fairness and convenience for the purposes of subparagraph 1(b) above, the court shall have regard to all the 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.”
“Nothing in this Act shall affect the power of the Court of Appeal or the High Court to stay any proceedings before it where it thinks fit to do so, either of its own motion or on the application of any person whether or not a party to these proceedings.”
“The courts in this case have been concerned with the question of whether a stay of proceedings should be granted in the exercise of a discretion confirmed by statute viz the Act of 1973. That statute was enacted before the recent development of the court’s inherent jurisdiction to order a stay of proceedings on the grounds of forum non conveniens…[which] did not reach its present form until decision of your Lordships’ in [the Spiliada case] …. How far is this approach relevant in cases where a stay is sought under paragraph 9(1) of Schedule 1 to the Act of 1973? That paragraph requires the court to assess the balance of fairness as between the parties in order to consider whether it is appropriate for a stay to be granted. These are not precisely the words used to describe the principle of forum non conveniens, but, since the latter principle is concerned to establish where the case can appropriately be tried ‘for the interests of the parties and for the ends of justice’, I find it very difficult to conclude that the underlying purposes of that principle and of the statutory provision are materially different …. For these reasons, anxious though I am not to fetter in any way the broad discretion conferred by the statute, it appears to me inherently desirable that judges at first instance should approach their task in cases under the statute in the same way as they now do in cases of forum non conveniens where there is a lis alibi pendens.”
“It is clear that Lord Goff is providing guidance based on the degree of assimilation that has occurred, but he is not seeking to restrict the discretion of the statute. Nowhere does he use language which requires ‘a clear preponderance’ of advantage. He expressly recognises that the statutory criterion is ‘the balance of fairness.’”
“As Lord Goff of Chieveley pointed out in the De Dampierrecase at page 107 C to D, there are two conditions that have to be fulfilled before a court can grant a stay pursuant to s.5(6) and paragraph 9 of Schedule 1 of the DMPA 1973. First, there have to be proceedings in respect of the marriage that exist in another jurisdiction, although it does not matter whether they were started before or after the original proceedings. Secondly, the balance of fairness (including convenience) has to be such that it is appropriate for the proceedings in the former jurisdiction to be first disposed of, which means there must be an assessment by the English court of that balance. Only if those prerequisites are fulfilled will the English court, if it thinks fit, order a stay of the English proceedings.”
“My wife’s assertion that we had not separated until very recently came as a complete surprise to me. I do not propose to dispute my wife’s statement on that aspect in detail because of the need to keep the statement short and to the point, but my wife’s allegation is entirely denied by me.”