The case of T v B [2024] EWHC 3251 (Fam) offers valuable insights into the use of Hemain injunctions in family law. It highlights the English court’s approach to preventing one party from gaining an unfair advantage by manipulating parallel divorce proceedings in multiple jurisdictions. Here, we explore the purpose of Hemain injunctions, their application, and their significance in international family law.
What is a Hemain Injunction?
A Hemain injunction is a type of interim measure designed to maintain a level playing field when parallel proceedings are ongoing in different jurisdictions. Unlike a permanent anti-suit injunction, a Hemain injunction aims to pause substantive proceedings in a foreign court until preliminary issues, such as jurisdiction, are resolved in England. The principle was first established in Hemain v Hemain [1988] 2 FLR 388 and further refined in S v S (Hemain Injunction) [2009] EWHC 3224 (Fam).
In essence, this injunction ensures that neither party can “steal a march” by advancing their case in one court while delaying proceedings in another.
The Case of T v B
In T v B, the wife sought a Hemain injunction to restrain the husband from progressing divorce proceedings in a foreign jurisdiction (Territory Y), arguing that England was the appropriate forum. The husband had used the time between being notified of the wife’s intention to file for divorce and her formal application to establish jurisdiction in Territory Y. This included renting a flat and securing employment there, enabling him to issue proceedings in what he viewed as a more favourable forum.
The court found that the husband’s actions were “vexatious, oppressive, and unconscionable,” as he had effectively stalled the wife’s English divorce proceedings by raising jurisdictional challenges while advancing his own case abroad.
Key Principles from the Judgment
- Preservation of the Status Quo:
Hemain injunctions are designed to ensure fairness when two courts are considering the same matter. The aim is not to prevent foreign proceedings indefinitely but to ensure that both courts resolve jurisdictional issues before substantive matters are addressed. - Forensic Advantage:
The court highlighted that the husband was trying to exploit procedural delays in England to gain an advantage in Territory Y, which justified the injunction. - Focus on Fairness:
The judgment emphasised that the injunction does not resolve the jurisdictional issue but prevents one party from advancing their case unfairly.
Why Does This Matter to Family Law Practitioners?
- International Disputes:
Hemain injunctions are particularly relevant in cases where spouses have connections to multiple countries, a growing trend in a globalised world. Practitioners must be prepared to address jurisdictional challenges swiftly. - Timing and Transparency:
The case underscores the importance of acting promptly and transparently when initiating proceedings. Delays or concealment can lead to adverse inferences. - Strategic Use of Remedies:
Hemain injunctions offer a practical tool to protect clients from being disadvantaged by procedural tactics in international disputes.
Conclusion
The T v B case illustrates the crucial role of Hemain injunctions in international family law. By preventing one party from advancing their case unfairly, these injunctions uphold the principles of fairness and comity. For practitioners, understanding their application is essential for effectively managing jurisdictional disputes and ensuring equitable outcomes for clients navigating cross-border divorces.
