Where divorce proceedings have been commenced in more than one country, it is possible to apply for an order to stay the English proceedings to allow the divorce to proceed in the other country. The power to order a stay is contained within Domicile and Matrimonial Proceedings Act (DMPA) 1973 Sch 1 para 9(1). It provides as follows:
Where before the beginning of the trial or first trial in any matrimonial proceedings 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, that those proceedings be stayed so far as they consist of proceedings of that kind.
Para 9(2) provides that when considering the balance and convenience, the court shall have regard to all 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.
Until recently, the law in relation to stays was fairly settled. In SA v FA [2022] EWFC 115 (B), HHJ Hess reviewed the authorities and provided the following summary:
- Fairness and convenience depends on the facts of each case and all the circumstances have to be considered. The court should take a broad view of all the facts and circumstances, not just those directly relating to the litigation.
- The court will consider what is the ‘natural forum’, that is the forum with which the parties have most real and substantial connection. These will include not only factors affecting convenience and expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transaction and the places where the parties respectively reside and carry on business).
- A stay will only be granted where the court is satisfied that there is some other available forum having competent jurisdiction which is the appropriate forum; that is to say where the case may be tried more suitably for the interests of all parties and the ends of justice. It is for the party seeking the stay to prove the existence of some other available forum which is clearly or distinctly more appropriate.
- If the court decides that there is no other available forum which is clearly more appropriate, then a stay will (almost certainly) be refused.
- If, however, the court concludes that there is some other available forum which is clearly more appropriate, then a stay will ordinarily be granted unless the applicant who resists the stay can show that a stay would deprive him or her of some legitimate personal or juridical advantage, or can show some other special circumstances by virtue of which justice requires that the trial should nevertheless take place here. If the applicant succeeds in showing this then the court must carry out a balancing exercise considering all the broad circumstances of the case, in order to determine the stay application, i.e. to decide where the case should be tried in the interests of the parties and the ends of justice.
- A stay should not be refused simply because the applicant will be deprived of some personal or juridical advantage if the court is satisfied that substantial justice will be done in the available appropriate forum.
- The mere fact that one party might be likely to achieve a better outcome in one forum than the other cannot be decisive.
The recent uncertainty arose when the Court of Appeal considered the case of Ferrara v Ferrara [2026] EWCA Civ 512. Although the Court of Appeal was unanimous in dismissing the husband’s appeal, two of the judges (Lord Justice Moylan and Lord Justice Arnold) took opposing views in relation to whether parties’ historic connections with a country were relevant when deciding forum. Moylan LJ (a family judge) said yes; Arnold LJ (a non-family judge) said no. The third judge (Miles LJ) concluded as follows:
[184] I prefer not to express a view on that legal issue: (a) it is unnecessary to do so, (b) I do not think that the point of law was adequately raised by the grounds of appeal (it only emerged in oral submissions), and (c) we heard very minimal submissions about it. I think the point should be resolved in a case where the court has had the benefit of fully-researched and considered arguments.
Shortly afterwards, McKendrick J handed down judgment in the case of Re A and Z (No 4) (Forum Non Conveniens) [2026] EWFC 203. It is the first reported decision to consider whether “historic connections” are relevant to forum in divorce cases following the recent Court of Appeal decision in Ferrara.
The dispute centres on a tension between the wording of DMPA 1973 Sch 1 para 9 (which is drafted broadly and could be interpreted as allowing historic connections to be taken into account) and the test laid down in The Spiliada [1986] 3 WLR 972 (which is much narrower and more focused on factors that connect the case or action when considering the issue of forum).
The tension arises because in De Dampierre v De Dampierre [1988] AC 92, Lord Templeman and Lord Goff considered that DMPA 1973 Sch 1 para 9 corresponds with the test contained within The Spiliada, but in other cases family judges have taken wider factors into account in forum cases.
In A and Z (No 4), McKendrick J took the view the House of Lords was wrong in De Dampierre to say that The Spiliada test should be applied in divorce forum cases for the following reasons:
- The language of DMPA 1973 Sch 1 para 9 ( (balance of fairness as between the parties to the marriage and having regard to all factors appearing to be relevant) is broad and not limited to the action.
- The previous paragraph (DMPA 1973 Sch 1 para 8 – which deals with mandatory stays in jurisdictional disputes within the British Isles) requires the court to consider the 12-month habitual residence of the parties to the marriage (not the action).
- The authors of the Law Commission Report that preceded the statutory provision in the DMPA 1973 were focused on the connection between the marriage and the jurisdiction.
- A modern construction of the statute taking into account recent developments including remote hearings makes it less appropriate to interpret the test as limited to connections related to the action.
- Disputes regarding matrimonial proceedings are by their nature more likely to involve factors related to the parties and their marriage than commercial disputes (such as in The Spiliada) which may be limited to factors related to the action.
On the other hand, McKendrick J concedes that if DMPA 1973 Sch1 para 9 is to be read as applying the test set out in The Spiliada, the court’s discretion must be limited to factors relevant to the action.
We therefore await a case to determine whether parties’ historic connections are relevant when considering forum in divorce proceedings. In the meantime, as McKendrick J concludes in Re A and Z (No 4)…
[78] The trial judge is now in a difficult position and the authorities, whether obiter or otherwise are not easy to reconcile.
Michael Allum, Partner, The International Family Law Group
Michael is a member of Resolution’s International and Finance, Tax and Pensions Committees
