A and Z (No 4) (Forum Non Conveniens), Re

These are divorce and financial remedy proceedings involving two spouses: Ms Dorottya Bartok and Ms Angelique Brunner. This is my fourth judgment in these proceedings. For the purposes of this judgment, the Applicant is Ms Brunner who asks me to stay the determination of the divorce and financial remedy proceedings because it is clearly more convenient for these issues to be litigated in the state of Florida, United States of America. The Respondent, Ms Bartok opposes the application for a stay.

At the hearing I heard evidence from two witnesses (the Respondent and her US attorney) and I received submissions from Mr Todd on behalf of the Respondent. The Applicant did not attend. She was not represented. She has failed to comply with previous orders made in these proceedings. She failed to file evidence as directed in respect of her own application for a stay and she failed to fund and instruct the single joint expert in the law of Florida, despite making and pursing an application for such expert evidence earlier in these proceedings.

I have determined to dismiss the Applicant’s application for a stay. I am satisfied this court has jurisdiction and I will make directions for the divorce and financial remedy proceedings to continue before the courts of England and Wales. I will continue the maintenance pending suit and legal services payment orders I made on 27 March 2026 until the Financial Dispute Resolution Appointment (“FDR”).

The Respondent was born in Hungary in 1992 and is 34 years old. The Applicant was born in the USA in 1972 and is 54 years old. The parties met in Davos in January 2019. At that time, the Respondent was renting a flat in London. The Applicant lived in the USA, although it is not clear to me which state she was living in.

By 14 July 2019, the parties were engaged to be married. They married in Hawaii on the 20 July 2019 (there was no pre-nuptial agreement) however the divorce from Respondent’s husband had not been finalised. They organised a further wedding in Florida in April 2020 but that was cancelled due to the Covid-19 pandemic. A day before the third attempted wedding, on 29 July 2020, the Applicant asked the Respondent to sign a pre-nuptial agreement (“the PNA”). It was signed. The parties married on 30 July 2020. The parties have had no children. The marriage faltered and the parties separated in September 2025. On 3 October 2025, the Respondent applied for divorce in England. The Respondent asserted that the courts of England and Wales had jurisdiction because the Respondent had been habitually resident in England and Wales for at least one year before the application for divorce was issued.

On 14 October 2025 Deputy District Judge (“DDJ”) Stuart made an order for substituted service of the English divorce proceedings on the Applicant. On 23 October 2025, the Respondent made her notice of intention to make a financial application within the divorce, which was issued on 5 November 2025.

On 7 November 2025, the Applicant filed her Answer to the divorce. Her Answer is headed “Without Prejudice or Submission to the Jurisdiction”. The Applicant’s Answer stated there had been invalid service and submitted service by email in Florida was not permitted. The Applicant states that even if England has jurisdiction, Florida is more appropriate and she would seek a stay of the English divorce proceedings in favour of Florida. Nowhere in the Answer does the Applicant dispute the Respondent was habitually resident in England and Wales for one year prior to issuing her divorce. Thus it can be seen her sole objection to jurisdiction was invalid service.

On 7 November 2025, the Applicant issued her application, with which I am concerned in this judgment, namely her application for a stay. Her Application Notice states that:

“In any event, should the court determine that jurisdiction of the English court is effectively seized, that the English divorce proceedings (and any financial remedy proceedings, if issued, by the applicant) be stayed pending the determination of the forum non-conveniens dispute on the basis that Florida is the most appropriate forum to determine the divorce and ancillary proceedings.” (sic)

Thereafter the Respondent’s solicitors filed an application notice seeking orders for maintenance pending suit and for a legal services payment order. These various applications were then listed to be heard by me on 16 February 2026. At that hearing both the Applicant and the Respondent were represented by leading counsel. The Applicant attended the hearing remotely, with permission. The Applicant applied for single joint experts in the laws of Florida and Colorado. The Applicant further applied for a hearing to determine the forum non conveniens dispute. The Applicant accepted that there should be an order for maintenance pending suit and an order for a legal services provision order, but the quantum of those orders was subject to significant argument by the Applicant’s leading counsel.

On 18 March 2026, I handed down a judgment on these various matters. I directed a hearing take place to perfect the terms of the order. The Applicant was again represented by leading counsel. No application for permission to appeal was made in respect of the order made. It is reported at [2026] EWFC 64. I was careful in that judgment to demonstrate comity between the jurisdictions of Florida, Colorado and England & Wales. I held at paragraph 22:

I also directed for the purposes of the forum non conveniens hearing the following (and here, applicant is a reference to the Respondent, and vice versa):

“ the respondent shall by 4 PM on 1 May 2026 send to the court and serve on the applicant a concise narrative statement limited to 15 pages of A4 in support her application dated 7 November 2025 for a stay of the English proceedings herein (for dissolution) brought by the applicant. That statement shall exhibit the schedule of “time spent” for the previous three years (as referred to in the recent statement of the respondent) together with documentary evidence in support.”

I granted the Applicant’s application for a single joint expert in the law of Florida. As can be seen at paragraph 16 of the order made following the hearing on 27 March 2026 when the Applicant was once again represented by leading counsel, I directed that the single joint expert should consider issues of the validity of service of the divorce application in Florida. The expert was also directed to address a number of other issues as set out in the order. I directed that the parties would send a draft letter of instruction and the cost of the expert be split between the parties. I also made orders for maintenance pending suit and a legal services provision order.

Thereafter, the Applicant chose not to comply with the orders made. As a result of the Applicant’s non-compliance, a third party debt order application was issued against the Applicant’s solicitors. That application was dismissed and the interim third party debt order was discharged, see my judgment at [2026] EWFC 90. The Applicant was served with these papers, as her solicitors were on the record acting for her. The Applicant chose not to attend the hearing.

Further enforcement applications were made against the Applicant by the Respondent’s legal team. An application was also made for permission to serve the Applicant by alternative means, by email. This led to a further hearing and further judgment, found at [2026] EWFC 146. I was satisfied that the service by alternative means was appropriate and held at paragraph 36 (and references to applicant are references to the Respondent):

“Therefore, the application before me by the applicant is to consider again the question of service. A number of options have been put forward by how that may be achieved, by Mr Todd KC. I am satisfied the appropriate method is for me today to make an order approving alternative service by email on the respondent. I have previously set out in my judgment the need for comity between jurisdictions and the fact that service is an exercise of sovereignty, but that exercise of sovereignty cannot defeat proper process and fairness. The applicant in these proceedings has diligently tried to serve the respondent now over many months, and for whatever reason, the respondent is putting herself in a position where she will not accept service. I am entirely satisfied, therefore, that the laws of England and Wales permit me to provide and grant permission for service by email, and that is not prohibited by the laws of Florida on the evidence before me.”

I summarised the Applicant’s non-compliance as follows at paragraphs 32 and 42:

“The applicant [a reference to the Respondent] has since filed written evidence for the purposes of the application today, and I can see in her fifth witness statement her evidence that the maintenance pending suit and legal services payment orders have not been complied with. What the respondent has chosen to do instead is make a payment in April and May 2026 for the sum of approximately £5,500. That is the sum she unilaterally determined was the appropriate sum following the breakdown of the marriage. It is the sum that she thinks is reasonable. It is not the sum that the Court considered was appropriate for the applicant. Apart from those two payments of £5,500, the evidence of the applicant is that no other payments have been made to her, and it is the position of Vardags and Mr Todd KC that the payments have not been made, and that is evidenced.

…..

I am also secondly satisfied that that failure to comply with my orders is both deliberate and continuing. I, of course, when I made the orders on 27 March, had heard from her leading counsel over the course of a day's legal argument about her assets. On her own case, her assets were around $60,000,000, and she had $ 500,000 liquid. Having considered that and the submissions of her counsel, I was entirely satisfied that she was able to make the payments, and the structure of the payments that was set out in my order largely followed her own leading counsel's submissions as to how those payments should be made. Therefore, I have no doubt that her contempt in failing to comply with those orders is her deliberate choice, and it is continuing. It seems clear to me she simply flouts the jurisdiction of this Court. She does not consider herself bound by my orders, and she continues to make unilateral decisions about what she considers is the appropriate amount of maintenance to be provided to the applicant.”

I also made a Hadkinson order and a Hemain injunction.The wording of the order was careful to encourage the Applicant to comply with the court’s order made to date and to participate in her own application for the stay. The order said (respondent is a reference to Applicant):

“Pending the payment in full of the sums set out in paragraph 13 above, the respondent shall be debarred pursuant to the rule in Hadkinson from participating by making any representations whether orally or in writing within these proceedings until such time as she complies with financial obligations under the 27 March 2026 order or further order. The exception shall be that the time for the respondent to find her evidence in the forum non conveniens proceedings shall be extended to 10 June 2026.”

The Hemain injunction required the Applicant to cease pursuing her nullity proceedings in Colorado and her divorce proceedings in Florida. I had no hesitation in making these orders because, as I set out in the earlier judgment at paragraphs 48 and 49:

“I am also asked to make a Hemain injunction, that is, an injunction restraining the respondent from pursuing litigation in Florida and Colorado. I have not been addressed in any detail on the principles and case law behind that. It is not necessary for me to deal with that today; I am familiar with the background of a Hemain injunction. I take on board it is a significant step and the Court must always pause and carefully consider the circumstances, but I have little difficulty in granting the applicant a Hemain injunction, for the very obvious reason that when the respondent attended this hearing and was represented by leading counsel in February, and when she was represented by leading counsel at the hearing in March, it was agreed that there should be a stay in pursuing proceedings overseas.

She has acted in breach of the agreement and, therefore, I have no hesitation in concluding that it is appropriate to grant the applicant the relief by way of the Hemain injunction, so she can try to preserve the status quo, reduce the cost of proceedings in Florida and Colorado, to which she has again been disadvantaged by the non-payment of the legal services payment order. In addition, it is the case that it is correct to hold the ring until this Court can determine whether the appropriate jurisdiction is England and Wales or Florida for these contested proceedings, which was the agreed position before me in February 2026. Non-compliance by the respondent since March does not alter that.”

I note that there was a hearing before His Honour Judge Elliff in the Denver County District Court on 24 April 2026. His Honor stayed the nullity proceedings in Colorado giving the following reasons:

“If the [English] High Court determines that it has jurisdiction, then the divorce proceeding will presumably proceed in London. It would then need to be determined whether a stay of this case should remain in place. Certainly there is a danger of inconsistent rulings should the cases proceed in tandem. In the interests of judicial economy, to avoid the possibility inconsistent rulings, and prevent the parties running afoul of the High Court order the Court stays this action pending a ruling by the High Court regarding the jurisdictional issue.”

I am told the Applicant did not attend this hearing and then she proceeded to de-instruct her Coloradan lawyers.

In Florida there was a hearing on 7 July 2026 before Her Honor, the Honorable Laura Shearon Cruz, Circuit Court Judge sitting in the 11^th District of Florida. The Applicant did not attend this hearing but was represented by her attorney. The Respondent attended remotely and was represented by Mr David Hazouri. The court adjourned to a further hearing on 7 August 2026.

The Applicant has failed to instruct the single joint expert in the law of Florida. The applicant has failed to file any evidence further to the directions made in March 2026 and then amended and re-made in May 2026. She was fully aware of hearing before me on 8 and 9 July 2026. The Respondent filed a detailed chronology of service of the proceedings, documents and orders on the Applicant, by email, over many months. The CVP link sent to her email address remained open at the hearing. She chose not to attend and chose not to be represented. This is all the more surprising as this was the hearing for her to present her case for the stay to demonstrate that Florida is clearly the more convenient jurisdiction. This is the application she issued in November 2025, and in respect of which she asked the court to make evidential directions in February 2026. Nonetheless, it is entirely fair to proceed to determine the stay application in the absence of the Applicant or absent representation from the Applicant. She has, sadly, decided to simply ignore the courts of England and Wales.

Although the applicant did not file any evidence pursuant to the directions I made in March and May 2026 she filed three witness statements for the purposes of the February 2026 hearing. Her first witness statement of 7 November 2025 more closely sets out her case on jurisdiction and on her application for a stay. Paragraph 1 of that witness statement says she is opposed to the grant of a divorce on the basis that the jurisdiction of the English court is not properly seized as the applicant has failed to effect proper service of a divorce application on her. (Again I note that the challenge to jurisdiction is based on there being inadequate service not on any other issue.) She sought a stay of the English divorce proceedings if the English jurisdiction becomes seized pending a determination as to whether Florida is the more appropriate forum for divorce proceedings.

In that witness statement she sets out the background and she sets out some information regarding the pre-nuptial agreement (“PNA”). She says the PNA was discussed when they were on holiday she says that the Respondent insisted the PNA was signed and it was executed with an online notary. She says the PNA was simple and they both understood the terms of the agreement and spent more than six months discussing possible terms with each other and their respective lawyers. She says the PNA contained extensive financial disclosure from both parties.

There is then a section entitled ‘Jurisdiction and Forum.’ The Applicant sets out that she wishes to divorce in Florida in accordance with the PNA. She says the PNA requires that the couple divorce in Florida. She says she does not accede to the jurisdiction in England. The Applicant goes on to give her evidence as to why Florida is the more appropriate forum. She says she is a US citizen that the couple married in the US that they deliberately negotiated a PNA in the US and for Florida law to apply to that. She said these were carefully considered arrangements and she would not have married without these arrangements. The Applicant says it is apparent that the Respondent has acted in an underhand way to try to seize the jurisdiction of England where she thinks she will have a more generous financial settlement. She says that the PNA was made in Florida and is subject to Florida law. The applicant continues saying that all her assets are held in the US. She says evidence about those assets will be most conveniently obtained in the US and with a substantive action in the US the Respondent can avail herself of the disclosure provisions available in the US. She says Florida and US companies, banks and financial institutions will only respond to US subpoenas.

She says any liquidation of assets in the US can only be achieved with US orders for sale. She goes on to say any valuations or expert evidence will need to examine US assets based in the USA. She says that witnesses in the USA can only be compelled to give evidence in the USA subject to US orders. She says the validity of the PNA can most easily be understood in the US. Further she goes on to say many of her assets are owned with third parties, including US corporates and trusts, and that those third parties would more easily engage with a US process if the US courts have jurisdiction. Overall she says enforcement will be much easier in the United States.

The Applicant filed a second witness statement which is dated 11 February 2026. That witness statement was largely produced to respond to the Respondent’s application for maintenance pending suit and interim legal services provision. At paragraph 28 of that witness statement through to paragraph 32 she sets out further reasons why Florida is the most convenient jurisdiction. She repeats that she is a US citizen with strong business and family ties to the United States. She notes that the respondent stayed in London in their rented flat but had limited ties to the United Kingdom. She queried why the respondent had problems with ESTA. She goes on to say all her assets are in Florida and her business is US based and she says it would be ridiculous to litigate in a country where there are no real links save for a car and the flat. In that witness statement the Applicant says for tax reasons she keeps a record of where she spends her time and she can provide that document setting out where she has been for the several last few years.

The Applicant filed a third witness statement on 16 February 2026. I note, in breach of the directions, this witness statement was produced on the very morning of the first hearing in these proceedings. In that witness statement she provides greater detail about her assets and where they are held. It would appear from her description of the property and business interests that, contrary to her earlier witness statement, most of her assets are not in fact held in Florida. I am told that her major business interest is a company seated in Maryland not in Florida. She also has significant assets in California.

As I have said, the Applicant did not file a witness statement in accordance with the directions made from March 2026 onwards and she failed to file, as she said she would, her schedule of where she has been living over the last three years

The Respondent has filed seven witness statements. Most of them address earlier issues of the background to the divorce, her financial position and her request for interim maintenance and a legal services provision order. She then made further witness statements in which she explains that the non-compliance with the orders made by the court by the Applicant and therefore why she has made her applications for various enforcement orders. She says the Applicant failed to comply with the legal services provision order and that has created significant hardship to her and has impacted her ability to fairly pursue these proceedings.

With that in mind I directed in May 2026 that her witness statement on the question of the Applicant’s stay application should be limited to 3 pages to save further legal expense. Her seventh witness statement dated 26 June 2026 sets out her evidence on the forum issues.

The Respondent says she has lived in England since 2016 and intends to remain here. She says she has a real and genuine connection to this country having maintained a home since 2016. She says she has maintained a home in London with the Applicant since 2020. She considers she is British of Hungarian origin. She has been granted British citizenship. She says London is the centre of all her connections and her life. She says she works for a company in London as a wellness ambassador. She says her dog lives here. She says her friendship circle is here. She says that, whilst, together with the Applicant, they travelled in the United States, they never treated Florida as their main home or their residence. She says that when they wanted to be at home they would travel to London. She said that the Applicant spent as much time in London as she could subject to tax regulations. She says that the applicant is forum shopping and has no real connection or residence in Florida or Colorado. She says the Applicant is avoiding California because California would apply a sharing of matrimonial finances and she does not wish to pursue this. She says the Applicant has never lived in Florida. She says she has not been eligible for a US visa since May 2024. She says that the Florida apartment that the Applicant says is her home, is one that she has never visited. She says that the Applicant neither lives nor works in Florida. She says that her Florida attorneys have made clear that the Applicant does not meet the residency requirement of six months to establish subject matter jurisdiction for the divorce and that is a contested issue before the judge in Florida, but has not yet been ruled upon.

She points out that she has received advice that the choice of jurisdiction clause in the PNA is only for commercial matters involving residents or citizens of the US and she is neither. The Respondent accepts that the Applicant’s assets are based in the United States but says this cannot prevent the English jurisdiction being the more appropriate one. She says that if there were to be divorce proceedings in Florida and the PNA is upheld and she receives no award then she will seek a “Part III” award under the laws of England that would result with broadly the same result in England. She says therefore it is clear that Florida is not better place than England. She also points out that it is still contested as to whether Florida even has jurisdiction to hear the divorce application.

The Respondent gave evidence briefly. She took the oath and answered a number of questions from Mr Todd. She referenced a letter written by the Applicant which she said was dated 25 May 2025 in which the applicant says the following: “ Dorottya and I have been married since 31 July 2020 and we have shared a home together continuously in the United Kingdom since February 2020.” This was a letter written in support of the Respondent’s application for British citizenship. The letter was sent to UK Visas and Immigration. The Respondent emphasised that she is now a UK citizen. She told the court that she reapplied for an ESTA visa and it was refused in the last few days but no reasons were given. She told me she had applied for a B1 visa and has an interview with the US Embassy in London on 3 September 2026. She went on to tell me about what happened at the hearing in Florida on 7 July 2026 .

Mr Hazouri is a witness of fact. He did not give expert evidence. The single joint expert in Florida law was never instructed because the Applicant refused to comply with the directions made, which of course, she had sought. Mr Hazouri filed one witness statement dated 13 April 2026. He said under Florida law service by email on an international defendant is permitted and there is no service ‘due diligence’ rule. He pointed out he had a filed an application for a stay of the proceedings in Florida because of the forum non conveniens hearing in London in July 2026 and because of the Applicant’s own agreement made to the court in February 2026 and reflected in the March 2026 order, that she agreed to a stay in both Colorado and Florida. He also said he has filed a motion to dismiss the Applicant’s divorce proceedings in Florida. This is on the basis that the Florida court has no personal jurisdiction over the Respondent. Further, he says there has been no valid service on the Respondent. It is also said that the Applicant is not a Florida resident so cannot assert subject matter jurisdiction. He also said a trial of the financial remedy issues would probably be listed for trial in the summer of 2027. He said that an exclusive jurisdiction clause could be invalidated if unconscionable and the burden of establishing this would lie with the party who seeks to rely on it. He said remote attendance at hearings in Florida is possible but parties would be expected to attend a trial in person.

The application for a stay is brought pursuant to the Domicile and Matrimonial Proceedings Act 1973 (hereafter “the 1973 Act”). Sub-section 5 (6) states:

“Schedule 1 to this Act shall have effect as to the cases in which matrimonial proceedings in England and Wales (whether the proceedings are in respect of the marriage of a man and a woman or the marriage of a same sex couple) are to be, or may be, stayed by the court where there are concurrent proceedings elsewhere in respect of the same marriage, and as to the other matters dealt with in that Schedule; but nothing in the Schedule—

(a)requires or authorises a stay of proceedings which are pending when this section comes into force; or

(b)prejudices any power to stay proceedings which is exercisable by the court apart from the Schedule.”

Schedule 1 is entitled: “Staying of Matrimonial Proceedings (England and Wales). Paragraph 8 sets out “obligatory stays” between “related jurisdictions” which is defined as “any of the following countries, namely, Scotland, Northern Ireland, Jersey, Guernsey and the Isle of Man (the reference to Guernsey being treated as including Alderney and Sark).” Paragraph 8 states:

Paragraph relates to discretionary stays and states (with emphasis added):

The authors of Rayden and Jackson on Relationship Breakdown, Finances and Children formulate the test as follows at paragraph 9.637:

Paragraph 9 of the 1973 Act was considered by the Houe of Lords in De Dampierre v De Dampierre [1988] AC 92. Lords Templeman and Goff of Chieveley gave speeches with which the others agreed. Lord Templeman held (with emphasis added):

Lord Goff held the following (with emphasis added):

The Spiliada [1987] AC 460 concerned an appeal against a without notice order permitting service out the jurisdiction against a Canadian company who exported sulphur in a claim for damages brought by the shipowners of the vessel known as The Spiliada, which suffered damage caused by the sulphur when on board. The dispute over forum was between the English and Canadian courts. Staughton J concluded it should be tried in England. Lord Goff summarises the case law and sets out six principles. For the purposes of this judgment I need only set out the fourth, where he stated (with emphasis added):

A number of other cases have then considered the meaning of paragraph 9 of Schedule 1 of the 1973 Act.

Thorpe LJ in Butler v. Butler (No. 1) [1997] 2 FLR 311 rejected a submission that the court should exclude all factors that are not directly relevant to an ancillary relief contest, when considering a stay. He held:

In RI v SSH [2010] 4 HKC 588 before the Hong Kong Court of Appeal, Cheung JA (with the agreement of Yuen JA Kwan JA) quoted Thorpe LJ in Butler v Butler and went on to state the following at paragraphs 4 and 5:

In Ferrara v Ferrara [2026] EWCA Civ 512 the court heard an appeal against an order that the applicant husband had failed in his application for a discretionary stay, having not demonstrated that Italy was clearly the more appropriate jurisdiction over England and Wales. He appealed to the Court of Appeal. The appeal was dismissed. A difference emerges in the reasons given between Arnold LJ and Moylan LJ.

Moylan LJ noted the statutory background at paragraph 85 and went on to set out a summary of the law from HHJ Hess in the case of SA v FA [2022] EWFC 115, where he held the following at paragraph 20:

Moylan LJ emphasised in italics those parts of the test summarised by HHJ Hess above, as there was a debate at the hearing about the correctness of these statements. Moylan LJ noted this dispute did not figure in the grounds of appeal or the skeleton; he therefore made “brief observations” which I take to be obiter. In summary these observations can be distilled to the following points:

In conclusion Moylan LJ holds the parties and Garrido J were correct to apply HHJ Hess’ summary in SA v FA including the ‘historic matters’.

Arnold LJ agreed with Moylan LJ on the outcome but not some of the reasoning of the judge below. He noted that the issue in dispute was barely argued and any views were provisional. He held at paragraph 148:

He then quotes from Spiliada and observes that the factors for the court to consider to determine which forum is appropriate concerns matter such as: “(i) the governing law, (ii) the location of witnesses and the language they speak, (iii) the location and language of documents and (iv) the places where the parties reside or carry on business. In some cases it may also be relevant to consider (v) the place where the events which gave rise to the claim took place and/or (vi) the location of the parties' assets.”

He then observes at paragraph 155: “Lord Goff referred to "the places where the parties respectively reside or carry on business". He used the present tense, and it is clear that he did so deliberately for the reasons I have just explained.” Arnold LJ casts doubt on the relevance of historic connections of a party to a forum if that connection no longer exists at the time of the forum non conveniens enquiry. He goes on to disagree with Moylan LJ’s view of De Dampierre holding:

“In referring to the "Frenchness" of the marriage and the spouses, Lord Goff was clearly referring to the facts that the parties were French citizens who spoke French and were married in France under French law. Furthermore, the husband resided in France, whereas the wife resided in the USA. It is therefore unsurprising that he concluded that France was the natural forum for the resolution of the dispute.

It can be seen from the passages quoted above that both Lord Templeman and Lord Goff discounted the wife's historic connections with England, and in particular the fact that she had previously resided in London.”

Turning then to SA v FA, Arnold LJ conclude that the first principle (italicised above) is not a correct statement of the law and HHJ Hess cited no authority in support. Importantly, he holds:

Arnold LJ then consider the second point summarised in SA v FA and takes issue with HHJ Hess’ formulation of the court assessing the parties’ real and substantial connection. Arnold LJ notes that Spiliada is cited as authority, but then re-quotes Lord Goff in these terms with Arnold LJ’s emphasis:

He then considers Chai v Peng, S v S and Rayden. He explains why these authorities are either not binding on the Court of Appeal nor are they persuasive and considers that Dicey, Morris and Collins, The Conflict of Laws (16^th ed) at 19-055 correctly states the law, quoting:

Miles LJ did not express a view on the ‘interesting’ legal issue.

In Ella v Ella [2007] EWCA Civ 99 Charles J (with the agreement of Thorpe and Maurice Kay LLJ) held in respect of the relevance of a pre-nuptial agreement to forum non conveniens at paragraph 37:

Thorpe LJ also agreed with this approach. I further note Rayden makes clear a pre-nuptial agreement is a relevant factor to consider when “connecting the family to more or one jurisdiction”.

I also note what is said under the separate test of the fairness of a stay in Rayden in circumstances where there is a pre-nuptial agreement (para 9.712) (footnotes omitted):

“(some) nuptial agreements connecting a case firmly to the more appropriate forum have been held to be of decisive importance in determining the fairness or otherwise of a stay upon the party seeking to litigate in England:

—     in S v S Wilson J held that it was fair to a wife to stay English divorce proceedings in favour of those in New York, pursuant to a pre-nuptial agreement which allocated jurisdiction to that State, and limited her financial provision, even though that provision might be far less than in England

—     in C v C (above) Johnson J held that it was fair to a French wife to stay English divorce proceedings, so that her divorce and financial claims be determined in France, by French Law, pursuant to a French nuptial agreement (reaffirmed four years after the marriage), which provided for separation of goods, notwithstanding the absence of any power under French Law to make a property adjustment order; and

—     in Ella v Ella (above) the Court of Appeal held that it was fair to stay English divorce proceedings in favour of those in Israel, because of a pre-nuptial agreement which provided for separation of property, for Israeli law to apply, and for disputes to be dealt with in Israel. This was the case, notwithstanding the fact that that agreement might confer some juridical advantage on the husband and corresponding prejudice to the wife. Tellingly, it was held that: '[A]bsent the agreement, this would be an English case and the husband would not be able to show that Israel was clearly the more appropriate forum'.”

Mr Todd’s case is set out as follows in his skeleton argument:

“(a)

England is plainly the appropriate forum for the divorce and financial remedy proceedings. Thea has lived in England since 2016. She intends to remain here.

(b)

Thea has a real and genuine connection to this country. She has maintained a home here since 2016 (and a home here with Angel since 2020).

(c)

Thea is a British citizen.

(d)

London is the centre of all of Thea’s connections and her life. (This is echoed in earlier statements). This echoes §§63 to 68 of her third statement.

(e)

Thea is working with Raffles as a wellness ambassador and continues to make efforts to further her music career in London. Her dog, Habibi has always lived in London. Thea’s friendship circle and support group are in England.

(f)

The connection with Florida is very weak and has largely been contrived by Angel in order to issue there. Florida was never treated as the parties’ main home or residence. Thea has never lived there.

(g)

Angel did travel to England freely and frequently. She stayed as long as she could within the confines of the relevant tax regulations. Thea says Angel unequivocally considered the London home to be her “home” with her; thus, she too had a real connection to England.

(h)

Angel has no real residence in Colorado, either.

(i)

PNA. When Angel approached Thea about a PNA, she told her that she had considered doing so in California (the State in which she was born), but because she had been advised that Californian law would apply sharing of the matrimonial finances, she did not pursue this. Instead, she insisted on using Florida because she thought it was more favourable to her. The parties had no substantial connection there. Similarly, they had no connection with Colorado beyond the fact that we were married there.

(j)

The PNA remains very controversial. We say it would be unconscionable for it to be given full effect. It was procured by unfair pressure.

(k)

Thea has not ever considered relocating to Florida or Colorado. Indeed she cannot even visit the USA at present as she has been refused an ESTA. Whether she can obtain a different visa has not been argued by Angel.

(l)

The Florida flat that Angel leased in the parties’ names was acquired just a matter of weeks before her Floridian divorce petition was filed; it obviously could never have been the parties’ home. There is more than a hint of positioning ahead of filing.

(m)

The Floridian attorneys have informed the Florida Court that Angel does not meet the residency requirement (of 6 months) to establish subject matter jurisdiction for divorce. This has not yet been ruled upon. Further, they have confirmed that, despite the requirement for it to do so, Angel’s petition has not put forth any basis for the Florida Courts having personal jurisdiction over Thea. Finally, they have confirmed that, notwithstanding the choice of jurisdiction clause in the PNA, such clauses are limited to purely commercial matters involving residents or citizens of the USA. In circumstances where (a) Thea is not a resident or (b) a citizen, she believes that such a clause cannot create jurisdiction where it does not exist otherwise. The Floridian Court therefore does not have jurisdiction to deal with the divorce.

(n)

This case cannot be tried more appropriately in Florida. It will either reject the PNA and make an award which should be similar to England. Or it will uphold the PNA and Thea will be compelled to seek an award under Part III in England. Either way, we end up with broadly the same result as in England. Florida is not better placed than England.

(o)

Furthermore, and contrary to Angel’s claims, English Court Orders (and in particular, judgment debts) can be recognised in Florida and throughout the other states of the US. Such orders can, be registered, and, provided subsequently recognised by the US Courts enforced there. They can also be domesticated (e.g., by a common law debt action or reflected in a mirror US Order) which can then be enforced.

There are options for doing this at both State and Federal Court level. This Court also retains a personal jurisdiction over Angel should she ever come here or to an allied jurisdiction.”

Importantly, Mr Todd also makes the following submissions in respect of the validity of the PNA and the choice of jurisdiction clause:

“Pre-Nup / EJC. The burden of proof was on her to establish that there was (i) a valid (i.e. not unconscionable) pre-nuptial agreement and (ii) a valid Exclusive Jurisdiction Clause.

These were very much in issue and the points raised on behalf of Thea have not been answered. These are:

(i)

The agreement makes no provision at all. It required an explanation why an otherwise commercially inexplicable agreement should exist.

(ii)

It was executed very shortly before the wedding (the day before the wedding).

(iii)

The EJC is unclear in that it does not say what happens if there is simply no jurisdiction for Florida to hear a future divorce.

(iv)

Thea’s supposedly independent legal advice was from a lawyer introduced by Angel who only gave her advice on the 20 July when the marriage took place on the 30 July.

(v)

This represented a considerable shift in the earlier position. When the parties married in Hawaii, there was no pre-nup.

(vi)

Thea says that she was under real distress. Angel said she could produce video evidence showing that this was not true. Thea challenged that Angel could produce such evidence. Angel has not produced any such evidence has been produced.

(vii)

The pre-nup is manifestly unfair; now leaving Thea in a predicament of real need.

(viii)

This Court can form an appreciation of Angel from her behaviour in these proceedings. It is not intemperance to say she has behaved disgracefully. When she did not get her own way, she has petulantly stormed off. She has not complied with many court orders.

Knowing what pressure it will impose on Thea, she has cut off her rent to ensure that her legal costs are not paid. Thea is left with no idea of where she and her dog are going to be living in a few weeks time. Angel’s stance is an arrogance born of immense wealth. It is an attitude that says a great deal about her and how likely it is that she would have attempted to steam-roller Thea into a manifestly unfair bargain.”

By reason of: (i) the non-compliance with the previous orders; (ii) the Hadkinson order; (iii) the failure to file evidence in compliance with my March and May 2026 directions; (iv) the failure, contrary to the March and May 2026 directions, to fund and instruct the single joint expert in the law of Florida; the Applicant has advanced no case to this court in respect of: (i) why Florida is the priority jurisdiction; (ii) why it is just to impose a stay; (iii) why the PNA is valid and not unconscionable; (iv) why the exclusive jurisdiction clause is valid. Despite this, I have, as set out above, had regard to her untested written evidence in respect of forum. I placed some limited weight on it.

It is important I remind myself of some core principles:

I remind myself I must consider these three tests:

There is no dispute there are divorce proceeding proceedings in Florida and England and Wales. Therefore there is a lis alibi pendens.

Many of the factors identified by Mr Todd in his submission that Florida is not the priority jurisdiction straddle the disagreement highlighted in Ferrara. It seems to me it is necessary to decide whether I agree with Moylan LJ and apply the two disputed principles below, or agree with Arnold LJ, and do not apply them:

It is clear Lord Templeman and Lord Goff considered that the paragraph 9 (1) (b) 1973 Act test “corresponds” with the Spiliada test. Lord Templeman provides no real reasons of his own, agreeing with Lord Goff. Lord Goff’s reasons are as follows:

With great respect to such an eminent judge, I have some difficulty following the legal reasoning behind this construction of paragraph 9.

First, the language of paragraph 9 (1) (b) is broad. It deliberately states: the balance of fairness (including convenience) as between the parties to the marriage. That is to say Parliament could have used the language of the “parties to the action” or the “action” in the context of the balance of fairness. It did not. Parliament did not use the language of Spiliada: “the action.” Further, at paragraph 9 (2) Parliament used language which does not tie the assessment of balance of fairness to the action, but instead Parliament legislated that: In considering the balance of fairness and convenience for the purposes of sub-paragraph (1)(b) above, the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed. Parliament placed a duty (shall) on the court when carrying out the balancing exercise not to consider simply the relevant factors, but an even wider criteria of factors that ‘appeared to be relevant’. Lord Goff himself recognised the difference in language between the common law test and the statute, but does not explain why he appears to add language to the plain terms of the statue not placed there by the legislature. The examples given of including the convenience of witnesses and any delay or expense do not lead me to adopt a construction of the anterior wording in a narrow sense to relate only to the action, as that is not the plain language used.

Secondly, it is important to read the statutory terms in their proper context. The proceeding paragraph deals with mandatory stays in respect of jurisdictional disputes between jurisdictions in the British Isles (the related jurisdictions). This requires the court not to consider the action but it requires the court to consider the 12 month habitual residence of the parties to the marriage. Parliament therefore intended a deliberate assessment of the factors that tied the husband and wife (as it would have been in 1973) to one of the related jurisdictions. This is very different to the common law test of Spiliada. If the Parliament had considered a very different test applied in paragraph 9, in contradistinction to paragraph 8, reading the statutory provisions together as a whole, it seems likely Parliament would have said so.

Third, I consider it a legitimate external aid to construction to consider the Law Commission’s report (as did Lord Goff). See also Bennion, Bailey and Norbury on Statutory Interpretation 9^th Edition, Lexis Nexis at pages 692 to 693. I note what is said about whether Law Commission’s report should be used only to identify the mischief to which the provision was directed or whether one can infer the legislation was intended to give effect to the Law Commission’s recommendations as set out in the report. Lord Goff used the report to consider the purpose of paragraph 9. As do I.

The Report at paragraph 77 says the following under the heading “Discretionary Power to Stay Proceedings”:

I also note the Report says the following at paragraph 85, in respect of the Paragraph 8 mandatory stay: “Priority of jurisdiction should, in accordance with the principle stated above, go to that country most closely connected with the marriage, that is to say the country to which the marriage might be said to “belong””.

It seems that the authors of the Law Commission Report were focused on the connection between the marriage and the jurisdiction. Whilst it is clear aspects of the action and litigation were also relevant, hence the reference to expense/witnesses/delay etc., the Report authors were looking at factors beyond the action. Given the very close connection between the Report and the 1973 Act I am materially assisted in relying on the report to inform the intention of Parliament when choosing the language of paragraph 9 (1). I do not read either from the language of the Act or the Report an attempt to elide paragraph 9 (1) with the common law test that was not yet in existence as the House of Lords would later come to develop in Spiliada thirteen years later.

Fourthly, I also consider the 1973 Act is legislation that should be subject of the principle statutory construction that “the Act is always speaking” and an updating construction is appropriate, as explained in Chapter 14 of Bennion supra. This is important for the reasons identified by Arnold LJ at paragraph 152 of Ferrara v Ferrara, namely that in the modern world of MS Teams, AI transcription, remote hearing, AI enabled translation etc many of the pre-digital barriers to litigation have less importance. Parliament granted the court a broad discretion to consider all factors that appeared relevant. This is a classic example of Parliament intending for the court to apply a construction that allows for changes since the Act was framed in 1973. As the relevance of technical issues related how litigation takes place diminish, it appears even less appropriate to re-write the paragraph 9 broad discretion to issues only related to the action and not the parties to the marriage and the marriage itself.

Fifthly, The Spiliada involved a commercial dispute between corporate companies. Damages in the form of compensation was in issue. Divorce involves status. It is very personal. Thorpe LJ’s reasoning in Butler v Butler is persuasive. It helps explains why Parliament set out tests for stays (whether mandatory or discretionary) that relate the marriage and the parties to the disputed jurisdictions. I agree that “[I]t is therefore not apt to confine factors to those that would be relevant to the trial of a contractual dispute.” Importantly it is also not what Parliament said.

For these reasons, and with all due respect, I cannot agree that the construction of paragraph 9 apparently set out in De Dampierre is correct. I note that Lord Goff describes his construction as one which is desirable. Some highly experienced family judges, (Thorpe LJ, Wilson J and Moylan LJ) have interpreted De Dampierre broadly to consider factors beyond the convenience of the action. I am no doubt bound by the doctrine of precedence by Thorpe LJ’s specific ratio in Butler v Butler and probably also by what was desirable in De Dampierre.

However, I would also agree with Arnold LJ, that if paragraph 9 is to be read as applying the test set out in Spiliada then the court’s discretion should relate to the factors relevant to the action, which is likely to curtail historical matters or broader connections between the parties and the marriage to different jurisdictions.

The trial judge is now in a difficult position and the authorities, whether obiter or otherwise are not easy to reconcile. I shall therefore simply apply the language of paragraph 9 of Schedule 1 of the 1973 Act.

I come to the clear conclusion, applying the language of paragraph 9, that the Applicant has failed to demonstrate that Florida is clearly the most appropriate – or priority - jurisdiction. That is largely because the Applicant has failed to demonstrate at this hearing that: (i) she is a Florida resident and the Florida courts will reject the Respondent’s motion that the courts lack jurisdiction; (ii) the Applicant has failed to demonstrate the validity of the PNA and/or the exclusive jurisdiction clause and in the absence of her instructing the single joint expert, for the purposes of the forum hearing, I accept Mr Hazouri’s evidence; (iii) the Respondent and the marriage have more ties to the jurisdiction of England and Wales than to the jurisdiction of Florida (I remind myself the forum contest is between England and Wales and Florida and the not the USA generally); (iv) the Respondent is currently not entitled to enter the USA and I am not clear when or if she will be granted permission; (v) the divorce and financial remedy proceedings are well advanced in these proceedings and there is already a significant amount of evidence (the bundle for this hearing ran to 946 pages of relevant material); (vi) the Applicant has engaged in substantial litigation misconduct and it would be unfair for the Respondent to re-litigate many of the issues in Florida which have already been considered by this court; (vii) despite much travel around the USA the Applicant’s own letter of 25 May 2025 asserted the parties had shared a home together in the United Kingdom continuously since February 2020.

I have not overlooked the Applicant’s much earlier evidence in respect of the location of her assets and the issue of whether enforcement would be easier in the USA. There are two problems with her evidence in this regard. First, her second and third witness statements are clearly in conflict and unlike the Respondent she did not attend court to be the subject of cross-examination. Therefore there is much doubt about the location of her assets and any proper connection to the state of Florida. Nor did the Applicant file the schedule of several years account of where she has been living, which she promised she would do. Nor did the Applicant instruct the single joint expert to permit this court to better understand issues of US intra-state enforcement, subpoenas etc. Therefore, whilst I accept many of the Applicant’s assets are in the USA, this does not result in Florida establishing itself as the priority jurisdiction. Issues of enforcement in California, Maryland etc have not been demonstrated to have been any easier, faster or less expensive, if there is a Florida divorce over an England and Wales divorce.

I also consider applying the language of the Act - including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed - it is more convenient for witness to attend England and Wales, given it is clear the Respondent lives in London and cannot currently travel to Florida. The Applicant has no barriers to travelling to London. Experts can give evidence remotely. Plainly there would be further expense and delay should the divorce proceed in Florida given that: (i) there is an extant motion to dismiss the Florida proceedings as set out above which has yet to be the subject of evidence and argument and ruling; and (ii) the English proceedings are fairly far advanced, certainly more advanced than in Florida and therefore there would be less delay and expense.

I also accept, that if the divorce in Florida proceeded and the PNA was held to be valid, the Respondent, as her evidence sets out, will raise “Part Three” proceedings and there will be yet further litigation, cost and expense between these two parties in London.

For these reasons, I conclude the Applicant has failed to demonstrate the balance of fairness and convenience comes down in favour of Florida.

I also find, for quite similar but slightly different reasons if I am wrong to disapply the language and purpose of paragraph 9, Schedule 1 of the Act and apply Spiliada and look only at the respective merits of the balance and fairness of the action and nor the parties and the marriage, I arrive at the same result, given many of the factors identified above relate only to the action and not the marriage or the parties generally.

Stage three does not arise, given my conclusion on Stage Two. However, should I be wrong about Stage Two, I would refuse the stay as to do so would be unjust in circumstances where the Applicant has failed to comply with orders of this court since April 2026. The orders were there to provide maintenance for the Respondent, who now faces being made homeless. Further, the purpose of the legal services payment order was to permit the Respondent -as the economically disadvantaged spouse – to fairly participate in the litigation. The Applicant has wholly disregarded all of those orders, seriously prejudicing the ability of the Respondent to have a fair hearing contrary to fundamental principles of the common law. To require the Respondent to “start from scratch” in Florida would be manifestly unjust.

I conclude it is necessary to extend the orders made for MPS and the LSPO as set out in my 27 March 2026 orders until the pFDR. This is for the same reasons as set out in my first judgment in these proceedings.

Showing all due comity to the judicial authorities in the USA, I shall ask the parties to agree directions to the pFDR seven days after the further hearing in the state of Florida on 7 August 2026.