Forum shopping and the case of Mantegazza v Mantegazza
By:3 commentsJuly 9, 2018
I have written here recently about the phenomenon of ‘forum shopping’, in which a party to proceedings, usually divorce, seeks to have the case dealt with in the country in which they believe the courts will act most favourably towards them. The classic situation is where the wife believes that she will get a more favourable divorce settlement from our courts than from the courts in some other country.
That was just the situation in the case Mantegazza v Mantegazza, which was decided by Mr Justice Moor in May last year, but which has only just been published on the Bailii website.
The facts of the case were that the husband, who is alleged “fabulously wealthy”, was born in Switzerland but lives in Monaco. The wife was born in England. She resides with the two children of the family in Switzerland, but “very much wishes to return to live in England.”
The husband worked in England for about forty years, until 2014. The parties met in England, and began to cohabit here in 1995. They were married in Switzerland in 1996. On the day of the wedding they entered into a pre-marital agreement, under which they agreed “to subject to Swiss law all their internal and external patrimonial relations, regardless of their future domicile”, including accepting the Swiss ‘separation of property’ regime, under which each party retains their own separate property.
The family lived in London until 2006, when they moved to Switzerland. The wife and children continued to reside there for the following eleven years (until the case was heard by Mr Justice Moor), although the husband continued to spend a lot of time working in London.
The marriage broke down in December 2014. The husband moved out of the matrimonial home, initially to a flat in Switzerland, but then moving to Monaco in February 2016.
The wife issued divorce proceedings in this country in July 2016, claiming to be domiciled in England and Wales. In September 2016 the husband issued divorce proceedings in Switzerland. He then filed an acknowledgement to the English proceedings, stating that he intended to defend the wife’s petition and apply for it to be stayed (i.e. halted), on the basis that there was a more appropriate jurisdiction for the divorce, namely Switzerland. He said that, in terms of English law, he was domiciled in Switzerland, but habitually resident in Monaco. The wife similarly applied to suspend the Swiss divorce proceedings.
It fell to Mr Justice Moor to decide where the divorce proceedings should take place.
He found that the ‘more appropriate forum’ for the divorce was Switzerland. He came to this conclusion for a number of reasons, including:
1. The existence and contents of the pre-marital agreement. Interestingly, no mention is made of the fact (as alleged by the wife) that the agreement was ‘sprung’ upon her on the wedding day – normally, the courts in this country will only recognise such agreements if they are entered into a reasonable time before the marriage.
2. The fact that the parties were married in Switzerland.
3. The fact that the last matrimonial home was in Switzerland, and that the wife and children had lived there for the previous eleven years.
4. The fact that there were no significant assets in England, whereas there were substantial assets in Switzerland.
5. The fact that there was no jurisdiction to deal with maintenance in this jurisdiction, but there was jurisdiction in Switzerland.
6. The fact that any order arising out of matrimonial property rights made here would not be recognised in Switzerland.
7. The fact that the wife had issued proceedings here first was a factor in the wife’s favour, but the force of this point was nullified by the fact that the wife had been engaged in negotiations in Switzerland, prior to issuing proceedings here unilaterally and without notice.
It was argued on behalf of the wife that she would not receive ‘substantial justice’ in Switzerland. However, this was not accepted by Mr Justice Moor, who took the view that, notwithstanding the separation of property agreement, she “faces an uphill struggle to satisfy the court that a fully developed legal system such as that in Switzerland will not deliver substantial justice.” Even if she did not receive justice, she could then apply to the court in this country, by making an application for financial provision after an overseas divorce.
In the circumstances, Mr Justice Moor granted the husband’s application for a stay of the wife’s English divorce petition, which would be dismissed on the pronouncement of a final divorce decree in Switzerland.
You can read the full judgment here.