Richard Kershaw examines the recent multi-million pound divorce proceedings in the case of SA v FA in EPrivateClient

Richard Kershaw’s article was originally published in EPrivateClient, 20 October 2022, and can be found here. 

English court declines to hear expat divorce

An English family court judge has held that the multi-million pound divorce proceedings of an English couple living in Abu Dhabi should take place in the UAE even though the English court had jurisdiction to hear the case.

Given the English courts’ reputation for generous divorce settlements, many financially weaker expats seek to divorce here when their marriages come to an end. However, His Honour Judge Hess has made clear that even where English law permits the English courts to hear a case, where in reality the parties have closer ties with the country in which they are living, the proceedings may need to take place there.

In this case (SA v FA [2022] EWFC 115) the parties had lived in the UAE since 2008, when the husband, a lawyer, began working there. Whilst the judge found the parties to be domiciled in England at the time of the wife’s divorce application, meaning the case could proceed here, he agreed with the husband that Abu Dhabi’s newly created non-Muslim Family Court was the more suitable forum.

In reaching his decision, HHJ Hess considered factors including with which country the parties had the most real and substantial connection, and whether substantial justice would be done in the UAE. He highlighted that the mere fact that one party might be likely to achieve a better outcome in one forum than the other cannot be decisive.

In respect of the parties’ connections to England and to the UAE, the judge highlighted that the parties had lived in the UAE for fourteen and a half years, and had committed to remaining there until 2028, when their children would conclude their education, by which time they would have lived there for twenty years. This was described as a strong factor in the judge’s conclusion that the UAE was the natural forum in which to determine the parties’ divorce and related financial claims. Further, it was noted that the judges in the UAE would be much more familiar with issues such as housing needs and the cost of living there than English judges would be, and that the parties would not need to travel to attend court hearings.

As to the Non-Muslim Family Court in the UAE, and the law it would apply, the wife sought to argue that due to the court’s newness the English court could not be satisfied it would provide substantial justice, and argued that as the only judge on the court was a Muslim Emirati, in practice the court’s decisions may be determined or influenced by Sharia norms. HHJ Hess rejected this, identifying that the law to be applied by the new court was broadly commensurate with English law, and that there was no reason to assume that any judge in that court, no matter their faith, would not apply those principles. In any event, many non-Muslim states have widely varying laws applicable on divorce, and it is not only English law which gives substantial justice.

HHJ Hess identified that he was publishing his judgment because his comments on the new UAE court may be relevant in other cases, sending a strong signal that UAE-based parties seeking to divorce in England are unlikely to succeed based on arguments about the level of justice available in the UAE’s Non-Muslim Family Court.

Should the wife, in due course, consider that her award in the UAE is unjust, she will have the option of seeking further provision in the English courts. Under Part III of the Matrimonial Proceedings Act 1984, additional provision can be made after an overseas divorce where the original provision is inadequate but it is a safety net only, and does not mean her award would be topped up to what she would have received had proceedings taken place in England.

Overall, the case serves as a reminder that parties and their lawyers must always consider not only whether the English court can hear a case, but whether it is likely that they will consider it appropriate to do so. The costs of contesting jurisdiction and forum can be high and may be disproportionate where the parties clearly have a stronger connection to a non-English jurisdiction.