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19 FEB 2013

FINANCIAL REMEDIES: T v T (Hemain Injunction) [2012] EWHC 3462 (Fam)

(Family Division, Nicholas Francis QC, sitting as a deputy High Court judge, 29 November 2012)

Prior to their marriage the husband and wife, both American citizens, signed a pre-marital agreement which purported to be governed by State A and made provision for financial resolution upon divorce including an arbitration clause. The agreement envisaged the couple living in other jurisdictions and recited that the law of State A would still apply.

 When the parties separated the husband filed for divorce in State A while the wife issued divorce proceedings in London where they had been living with their children for the last 7 years. The husband sought a stay of the English proceedings and pressed on with the American proceedings by invoking the arbitration process provided for by the PMA. The wife sought a hemain injunction preventing him from doing so.

 The wife contended that she should not be bound by the PMA which was signed only 4 days prior to the wedding for which over a hundred guests were flying in for and in circumstances where the husband informed her that he would not proceed with the wedding if she did not sign. She was placed under a great deal of pressure and claimed the husband led her to believe that there was some flexibility in the financial settlement in the PMA.

 There was at least an arguable case that the wife should not be bound by the terms of the PMA. The court had jurisdiction to grant an order restraining the husband from pursuing arbitration in the USA at least until his own stay application had been determined. The starting point from Hemain v Hemain [1988] 2 FLR 388 was that the jurisdiction must be exercised with caution. In an exceptional case an injunction to interfere with foreign proceedings (including foreign arbitration) could be granted, particularly where it was for a limited period.

 In the particular circumstances of the case the husband could not be shown to be acting in a vexatious, oppressive or unconscionable manner in pursuing the foreign proceedings. The facts of the case were unusual insofar as the PMA contained an arbitration clause which provided a means of determining the validity of the PMA itself. The wife, therefore, had a proper forum for airing her case that she was pressurised into signing the agreement. Application dismissed. 


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