Helen Ward and Sarah Havers acted on behalf of the husband in Mantegazza v Mantegazza [2017] EWHC 3811 (Fam) in respect of his successful application to stay the wife’s English divorce petition on the basis that Switzerland was the more appropriate forum.
Background
The husband (H) is Swiss and comes from a very wealthy Lugano family. His working life was spent in the then family businesses, Cosmos Holidays and Monarch Airlines. The wife (W) is English and they met in England in 1995 when W was working for Cosmos Holidays. H and W married in Switzerland in 1996 where they also signed a pre-marital agreement (PMA) in which they elected a separation of property regime. In the PMA they also elected Swiss law and specified that the Lugano court should deal with all disputes concerning “patrimonial rights” (ie rights relating to assets and finances). H and W attended a blessing of their marriage in England a few days later.
Following their marriage, the parties lived in London and their two children were born there. However, they never owned a house of their own, living instead in a family-owned property. In 2006 the family moved to Lugano where a house was then purchased by H. The family lived in Lugano for the next 11 years, even after the breakdown of the marriage in December 2014.
During the family’s time in Lugano, H divided his time between there and London where he continued to work for the family business. The family spent little time together in London, with their holidays being spent elsewhere.
After the breakdown of the marriage in 2014, H moved out to a nearby apartment and from February 2016 became resident in Monaco. This required him to spend a certain amount of time there, with the result that his time was relatively evenly divided between Monaco and Lugano. From November 2015 to September 2016, there were negotiations between Swiss lawyers instructed by H and W as to the terms of a financial settlement.
English and Swiss proceedings
Despite the negotiations in Switzerland and while she was still living in Lugano, in the summer of 2016 W issued divorce and then financial proceedings in England on the basis of her English domicile. Following service in Monaco in September 2016, H issued a divorce petition in Switzerland and an application in England to stay W’s petition on the basis that Switzerland was the more appropriate forum (under s5(6) and paragraph 9, Schedule 1 of the Domestic and Matrimonial Proceedings Act 1973 (DMPA)). Separately, W also issued an application in Switzerland for permission to remove the parties’ son to live permanently in London with her.
The law
As Switzerland is not a member of the EU, it is necessary to look at domestic law. In this situation (ie jurisdiction for divorce proceedings), English and Swiss domestic law do not adopt the same law referable to where the first petition was issued. If H had issued his petition first in Switzerland, under Swiss domestic law (which mirrors EU law), the Swiss court would have seized jurisdiction and a subsequent English petition issued by W would have been subject to a mandatory stay by the Swiss court.
If the situation was reversed (as it was in this case) with the English petition issued first by W, English domestic law does not provide for a mandatory stay of a petition issued in a non-EU member state. As a result, H was able to apply for a discretionary stay of W’s English petition, even though she issued first, on the basis that Switzerland was the more appropriate forum. The factors the court takes into account when deciding which is the more appropriate forum are set out in the leading House of Lords authority of De Dampierre v De Dampierre [1987] All ER 1.
W’s defence
W’s case, in summary, was that she felt that she had no choice but to sign the PMA (electing a separate property regime, Swiss law and the Lugano court). The family moved there at H’s insistence, it was not envisaged that it would be a long-term move and the children were never happy in Lugano. W does not speak Italian, the children are not fluent and the family communicates in English. Half the marriage was spent in England and H spent the majority of his time there working, even after the move to Lugano. W did not abandon her English domicile of origin.
By the time of proceedings, H was not resident in Lugano and W wished to move back to London (having only ever had a temporary Swiss residence permit). It was also highly likely that she would be granted permission to take her son, Antonio, to London with her.
Judgment
Mr Justice Moor, as a result of the submissions made on behalf of W, addressed various technical and complicated arguments in his judgment (in relation to the maintenance jurisdiction, the meaning of “continuing proceedings”, etc.). These are not addressed here since this article focuses only on the aspect of the case relating to the appropriate forum.
The burden of proof was on H to establish that Switzerland was clearly the more appropriate forum. If H succeeded, then the burden fell on W to establish that she would not obtain substantial justice in Switzerland.
On the matter of whether England or Switzerland was the more appropriate forum, Mr Justice Moor said: “I have come to the clear conclusion that, at first sight, this case looks like a Lugano case. Having considered all the submissions very carefully, I remain of the view that it is indeed a Lugano case. I say that for the following eleven principal reasons:
- The existence of the PMA which was executed in Switzerland;
- The agreement to subject to Swiss law all their internal and external patrimonial relations;
- The election of the Lugano court as being the court competent to deal with any future disputes concerning patrimonial rights;
- The parties were married in Switzerland;
- The last matrimonial home is in Switzerland;
- The wife and children have resided in Switzerland for the last eleven years;
- At the breakdown of the marriage, the parties negotiated for many months via their Swiss lawyers with no suggestion that the divorce should take place in England;
- There are next to no assets in England;
- There are significant assets in Switzerland;
- At the date on which the two petitions were issued and at today’s date, there is no jurisdiction to deal with maintenance in this jurisdiction but there is jurisdiction in Switzerland; and
- Any order arising out of matrimonial property rights made here will not be recognised in Switzerland.”
Mr Justice Moor concluded that H had “discharged the burden of showing that Switzerland is clearly the more appropriate forum in this case”.
The burden then fell on W to satisfy the judge that she will not receive substantial justice in Switzerland. For Mr Justice Moor she faced “an uphill struggle” due to the existence of the PMA. This was the “real nub of the argument” since, following Radmacher v Granatino, it was open to H to argue, if W’s financial claims proceeded in England, that she should still be held to it. Accordingly, W could not satisfy Mr Justice Moor that she would not “receive substantial justice in Switzerland” and her English petition was stayed with the effect that the divorce and her financial claims were dealt with in Switzerland.
Partner Helen Ward said of the decision: “London has gained a reputation as the divorce capital of the world and, as a result, a popular place for wealthy prospective divorcees to ‘forum shop’. This case is a useful reminder of the options available (depending on the competing jurisdiction) under English domestic law to defend against forum shopping.”
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