Which Country?

The English court of appeal has handed down an important judgment very recently in a case called Mittal v Mittal (18 October), where there are divorce proceedings in two countries.

If starting court proceedings is not of itself enough dispute, sometimes there is also a dispute as to which court in which country should hear the case if there is some basis for the courts in two different countries to do so.

In those cases, countries have developed rules to decide which country should hear it and each country has its own rules; the Australian rules differ from those in England.

On top of that, England is a member of the European Union and the European Union has its own rules. This concerned the intersection of all three, between two Indian nationals who were for a time living in England.

A previous case called Owusu seemed to indicate that if somebody from outside the European Union brought a case in England, and the other party brought the same case in a country outside the European Union, England could not stop the English case going ahead even under its own rules. The Mittal case shows that this is not now correct, owing partly to new European Union rules.

Therefore, for example, as between Australia and England, England can now apply its own domestic law and stop its own proceedings if on the balance of convenience the case should be held in Australia. Australia applies a different test, namely whether Australia is a clearly inappropriate place to run the case. As Counsel for one of the parties said, "The new decision confirms that the EU does not purport to legislate for the rest of the world beyond Europe...".

Warning: There may be an appeal from this decision but we will advise on the outcome of any appeal if it takes place.