HUSBAND SEEKS FOR THE PERMANENT STAY OF PROPERTY SETTLEMENT AND SPOUSAL MAINTENANCE PROCEEDINGS ON THE BASIS OF RES JUDICATA
Clayton v Bant [2020] HCA 44 (2 December 2020)
This case is involves the husband seeking for the permanent stay of the proceedings commenced by the wife in the Family Court by reason of res judicata.
Facts:
In 2013, the wife instituted proceedings against the husband in the Family Court seeking parenting orders in respect of the child. The proceedings were amended to seek orders for property settlement and spousal maintenance.
In 2014, the husband instituted the Dubai proceedings against the wife in the Dubai Court seeking divorce from the wife. He also sought in those proceedings the "dropping", in the sense of extinguishment, of "all her marital rights that are associated with that divorce in terms of all type[s] of alimony, deferred dowry and others as well as compensating him for all material and moral damage at the discretion of the court". The wife was notified of the Dubai proceedings but did not appear.
The ruling granted the husband an "irrevocable fault-based divorce", the effect of which was to dissolve the marriage. The ruling went on to order the wife to pay AED 100,000 (corresponding to the amount of the advanced dowry) to the husband and to pay the husband's costs of the proceedings.
The husband applied to the Family Court for a permanent stay of the property settlement proceedings and spousal maintenance proceedings on the basis that the ruling of the Dubai Court "operates as a bar" to those proceedings "by virtue of the operation of the principles of res judicata/cause of action estoppel".
Issue: Is the ruling of the Dubai court operates as a bar in the proceedings commenced by the wife in the Family Court?
Law:
- Family Law Act 1975 ss 74, 79
Analysis:
Mr Bant's claim in the Dubai Court is best characterised as one for the dissolution of marriage only. The expert evidence was not that the Personal Status Law had adopted a rule requiring maintenance of existing property rights before marriage. Rather, the expert evidence was that the Dubai Court had no jurisdiction with respect to property outside the territory of the Emirate. The lack of any rule for redistribution of assets, within or outside the Emirate, follows naturally from this lack of jurisdiction, since any redistribution of property within the Emirate might be expected to take into account respective foreign property holdings of the parties. No cause of action or claim estoppel can bar Ms Clayton's claim for a redistribution of property rights under s79 of the Family Law Act.
Conclusion: The ruling by the Dubai court does not operate as a bar in the proceedings file commenced by the wife against the husband in the Family Court.
