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Family Law

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23 JAN 2013


(Family Division, Bodey J, 10 October 2012)

The Indian husband and wife were born and married in India and had a child together. The family moved to the UK 5 years ago but when they returned to India for a holiday the husband flew back to England and cancelled the wife and child's tickets. They secured their own tickets but upon arrival to the UK she was notified that the husband was no longer supporting her as a sponsor and that he had initiated divorce proceedings in India. She was granted only temporary permission to enter the UK and upon doing so initiated proceedings under s 27 of the Matrimonial Causes Act 1973 seeking maintenance for herself and the child. She also brought divorce proceedings based on the husband's residence in England. Thereafter the wife and child returned to India and the husband too was now living in India.

The husband contested the jurisdiction of the UK court. An interim maintenance order was made which the husband paid in full until the wife returned to India and then he paid at a significantly lower rate, claiming the cost of living in India was much less than in England.

The husband now sought a stay of the wife's English proceedings to enable the divorce in India to be progressed.

The court found that the English court retained a discretion to stay proceedings in favour of proceedings in a foreign jurisdiction in line with the reasoning in JKN v JCN. On the evidence and in terms of overall fairness it was clear that India was the preferable jurisdiction to continue the proceedings. The s 22 application would not survive the stay of Enlgish proceedings however the s 27 application would remain in being but stayed on the basis it would be dismissed upon decree absolute being issued in India.

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