High Court dismisses wife’s petition allowing her to file a further petition in forum shopping dispute

In Chai v Peng, to further the overriding objective, the High Court allowed the wife’s (W) request to dismiss her petition under Family Procedure Rule 7.7(1) in a forum shopping dispute, thereby enabling her to file a fresh petition based on firmer jurisdictional facts.

W petitioned for divorce in England in February 2013. The husband (H) accepted that W had been living in England since October 2013. H disputed the English court’s jurisdiction and commenced proceedings in Malaysia, which proceedings are subject to appeal. H resisted W’s application on the following grounds:

The court should discourage forum shopping.

Judicial endorsement of W’s conduct would risk prejudicing prospective respondents everywhere. The court considered this point did not arise, as the Malaysian court had not reached a decision about whether it had jurisdiction. There was no evidence that the timing of the English petition relative to the Malaysian petition had been accorded any significance.

W was trying to obtain a collateral advantage by asking the court to dismiss her petition and making domicile under article 3 of Council Regulation (EC) No 2201/2003 of 27 November 2003 referable to May 2014, rather than February 2013.

Wasted legal costs. There had been several expensive hearings in England on the premise that the court had jurisdiction, which W sought to disavow.

The court unconditionally dismissed W’s petition without adjudication of the merits thereby allowing her to present a fresh petition. To save costs, and on W’s undertaking to file another petition, the court awarded W maintenance pending suit, from the date on which W’s petition is issued. The outcome is fact specific but demonstrates an unusual approach to reduce the issues in dispute in a forum shopping case. It remains to be seen whether the decision gives W a jurisdictional advantage and if H appeals.

Case: Chai v Peng [2014] EWHC 1519 (Fam), 1 May 2014.

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