Mr Justice Mostyn:
In this judgment I shall refer to the Applicant, CG, as “H” and to the
Respondent, IF, as “W”.
This is H’s application pursuant to s. 13 Matrimonial & Family Proceedings
Act 1984 for leave to make an application for financial relief following a
Swiss divorce.
S. 12(1) of the 1984 Act provides:
12. Applications for financial relief after overseas divorce etc –
(1) Where –
(a) a marriage has been dissolved or annulled, or the parties to a
marriage have been legally separated, by means of judicial or other
proceedings in an overseas country, and
(b) the divorce, annulment or legal separation is entitled to be recognised
as valid in England and Wales,
either party to the marriage may apply to the court in the manner
prescribed by rules of court for an order for financial relief under this Part
of this Act.
S. 13(1) provides:
13. Leave of the court required for applications for financial relief –
(1) No application for an order for financial relief shall be made under
this Part of this Act unless the leave of the court has been obtained
in accordance with rules of court; and the court shall not grant leave
unless it considers that there is substantial ground for the making of an
application for such an order.
FPR 3.17(1) provides:
An application for leave to apply for an order for financial relief under Part
III of the Act of 1984 shall be made ex parte by originating summons
issued in Form M25 out of the Principal Registry and shall be supported
by an affidavit by the applicant stating the facts relied on in support of
the application with particular reference to the matters set out in section
16(2) of that Act.
In order to grant leave the court must be satisfied that the Applicant
has established its jurisdiction. Jurisdiction is governed by s. 15. This
provides:
15. Jurisdiction of the court –
(1) Subject to subsection (2) below, the court shall have jurisdiction
to entertain an application for an order for financial relief if any of the
following jurisdictional requirements are satisfied, that is to say –
(a) either of the parties to the marriage was domiciled in England and
Wales on the date of the application for leave under section 13 above or
was so domiciled on the date on which the divorce, annulment or legal
separation obtained in the overseas country took effect in that country; or
(b) either of the parties to the marriage was habitually resident in
England and Wales throughout the period of one year ending with the
date of the application for leave or was so resident throughout the period
of one year ending with the date on which the divorce, annulment or legal
separation obtained in the overseas country took effect in that country; or
(c) either or both of the parties to the marriage had at the date of the
application for leave a beneficial interest in possession in a dwelling-house
situated in England or Wales which was at some time during the marriage
a matrimonial home of the parties to the marriage.
(2) Where the jurisdiction of the court to entertain proceedings under
this Part of this Act would fall to be determined by reference to the
jurisdictional requirements imposed by virtue of Part I of the Civil
Jurisdiction and Judgments Act 1982 (implementation of certain European
conventions) or by virtue of Council Regulation (EC) No 44/2001 of 22nd
December 2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters or then –
(a) satisfaction of the requirements of subsection (1) above shall not
obviate the need to satisfy the requirements imposed by virtue of that
Regulation or Part I of that Act; and
(b) satisfaction of the requirements imposed by virtue of that Regulation
or Part I of that Act shall obviate the need to satisfy the requirements of
subsection (1) above;
and the court shall entertain or not entertain the proceedings accordingly.
Were leave to be granted and the court to proceed to a final hearing
then the court has a duty on that occasion pursuant to s. 16 to consider
whether England and Wales is the appropriate venue for the application.
Under s. 16 the court has a duty to consider a number of specific factors
that bear on the connection of the parties, their marriage and their
divorce with both England and Wales and the country where they were
divorced. It is well established that, although not explicitly swept up by s.
13, the s. 16 factors are to be taken into account on the leave application.
At the final hearing, by virtue of s. 18, the familiar s. 25 Matrimonial
Causes Act 1973 factors are to be taken into account. Again, although
not explicitly swept up by s. 13, the manner in which the court might
exercise its discretion at the final hearing is plainly a matter to be taken
into account when considering the question of leave.
The fate of H’s application therefore turns on my being satisfied by him
that:
i) The jurisdiction of the court has been established, at least prima facie;
and
ii) there is a “substantial ground” for the making of the application.
I shall turn to the question of jurisdiction later. There is a considerable
complication in this regard.
In the recent Supreme Court decision of Agbaje v. Akinnoye-Agbaje
[2010] UKSC 13, Lord Collins, delivering the judgment of the Court
stated:
32. It is clear that something must be done to prevent the waste of costs
and court time, and prejudice to the applicant, caused by applications to
set aside which have only questionable chances of success. That must of
course be balanced by a proper application of the threshold of “substantial
ground.” But as Deane J said in the Federal Court of Australia in an
entirely different context, “the word ‘substantial’ is not only susceptible
of ambiguity: it is a word calculated to conceal a lack of precision”:
Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees’
Union (1979) 42 FLR 331, 348.
33. In the present context the principal object of the filter mechanism
is to prevent wholly unmeritorious claims being pursued to oppress
or blackmail a former spouse. The threshold is not high, but is higher
than “serious issue to be tried” or “good arguable case” found in other
contexts. It is perhaps best expressed by saying that in this context
“substantial” means “solid.” Once a judge has given reasons for deciding
at the ex parte stage that the threshold has been crossed, the approach
to setting aside leave should be the same as the approach to setting aside
permission to appeal in the Civil Procedure Rules, where (by contrast with
the Family Proceedings Rules) there is an express power to set aside, but
which may only be exercised where there is a compelling reason to do
so: CPR rule 52.9(2). In practice in the Court of Appeal the power is only
exercised where some decisive authority has been overlooked so that the
appeal is bound to fail, or where the court has been misled: Barings Bank
plc v. Coopers & Lybrand [2002] EWCA Civ 1155; Nathan v. Smilovitch
[2007] EWCA Civ 759. In an application under section 13, unless it is
clear that the respondent can deliver a knock-out blow, the court should
use its case management powers to adjourn an application to set aside to
be heard with the substantive application.
The differences between the various tests referred to by Lord Collins
are very subtle and highly nuanced. We now all know that a substantial/
solid ground is a stiffer test than a “serious issue to be tried” or a “good
arguable case”, albeit, as Lord Collins points out, the word “substantial”
is calculated to give rise to ambiguity. In my opinion a solid/substantial
ground will be shown where the court can confidently say that the
probability is greater than or equal to 50 % that the applicant will achieve
a substantive order were the matter to be tried.
I should say a few words about procedure. Here W has filed a statement,
submitted a skeleton, and instructed counsel. The reason she was able to
do all this was because she was served with the originating process, even
though there was no requirement to do so. There was some faint protest
raised at the presence of her legal team and I was asked not to read the
skeleton submitted on her behalf. I think that there is a helpful analogy to
be drawn with the appellate process, an analogy that is given legitimacy
by paragraph 33 of Agbaje. Although an application for permission to
appeal is strictly ex parte it is a commonplace for the other party to file
a skeleton in opposition, and such a skeleton is invariably read (in my
experience). Moreover, the Court of Appeal has full power to adjourn the
application for permission to be heard inter partes either with or without
the appeal proper to follow if granted.
In Agbaje at paragraph 30 Lord Collins pointed out that the Law
Commission in its report intended that a leave application should be
capable of receiving similar treatment. He stated:
As indicated above, the filter mechanism for leave in section 13 was
recommended by the Law Commission. The Working Paper suggested
that the ground for leave be that in all the circumstances the case was a
proper one to be heard, but it added (paragraph 53, n 195) that the court
would have an inherent power to deal with individual cases in the most
convenient way, e.g. by adjourning an application for leave to enable
evidence to be filed by the other side; and by dealing with applications
for leave inter partes and (if leave is given) with the substantive matters
at the same hearing. The Law Commission Report recommended that
the filter should require the applicant to establish “a substantial ground”
for the making of the application, and if necessary Rules of Court
could specify the circumstances in which the respondent could object:
paragraph 2.3.
In this case I decided that I should read Mr Wood’s skeleton argument
and hear his submissions.
In Agbaje the Supreme Court was extremely critical of the huge costs and
delay that had been incurred by an unsuccessful application to set aside
the ex parte grant of leave. I would have thought that in order to avoid
any kind of repetition of that syndrome the court should be prepared,
where on a true ex parte application the needle appears to be flickering
around the 50/50 probability mark, to adjourn it to be heard inter partes.
The facts
H and W married in 1979 and have a daughter, E, now aged 30. In 1999
they sold their home in Glasgow and purchased a flat in London E14,
in that same year they moved to Austria, and in 2003 they moved to
Switzerland. Each of them is permanently resident in Switzerland.
In his affidavit dated 29 September 2009 H states that from 2003 W
began to pressurise him to transfer the London flat to her “in order to
prevent the flat from being vulnerable to creditors that she imagined
might emerge”. He stated in paragraph 12 that following the discovery by
W of an adulterous relationship on his part in 2006 her demands became
more urgent. He stated that in order “to calm the situation down” he
“finally acceded to signing the papers that she had had drawn up by a
solicitor”. He went on:
“This was on the strict understanding that for the time being, the flat
would remain our daughters home and that I was not conceding my share
in the property to my ex-wife. I felt there was no detriment to me, but
that was giving my ex-wife peace of mind that was valuable to her. I
continued to contribute to the mortgage and other bills as I had always
done from the joint account.”
In the bundle there is a statement made by W that will be placed before a
HM Land Registry Adjudicator in connection with H’s attempts to obtain a
restriction on the property. W tells a different story. The parties do agree
that the discussions about the transfer of the flat arose in the context of
the discovery of H’s adultery. It seems that W was taking full advantage of
H’s guilt and shame. She stated:
“We talked about the property. I asked [H] to sign the property over to
E but he insisted on transferring the ownership to me rather than to E. I
agreed to tell neither H’s mistress or his father (who was quite ill and held
[H] in high esteem) about how [H] had behaved.”
W says that the transfer was done in full knowledge that there was going
to be a divorce and that there was no agreement of any kind that she
would hold the property or any part of it on trust for H or that he would
retain any interest in it.
Exhibited to the statement is a copy of a letter to both H and W from a
firm of solicitors instructed to undertake the transfer. It is dated 7 August
2006. It reads, in part:
“Your proposed Transfer of Equity of [address of property]
This letter explains the basis on which our firm will carry out all the work
necessary in respect of your proposed Transfer of Equity from [H] and [W]
to [W]”
On 20 October 2006 the solicitors wrote to H alone as follows:
“Transfer of Equity in relation to [address of property]
Further to previous correspondence in this matter we enclose herewith
the following documentation: –
1. Deed of consent and charge …….
We are at liberty to advise you that you may wish to take separate
independent legal advice before signing this document
2. Engrossment of the transfer……”
On a date between 20 and 26 October 2006 H signed the Deed of Transfer
in Form TR1. The document itself was not dated until 11 December
2006. In Box 5 it specifies H and W as transferors. In Box 6 W is
identified as sole transferee. In Box 11 none of the boxes signifying a
trust arrangement is ticked. In Box 12 H is released from his mortgage
covenants.
These documents demonstrate that H will have a very hard task indeed
to show that he was mistaken as to what he was signing. It is just not
credible that he could have been unaware or mistaken as to what he was
signing away.
About three weeks later H and W jointly submitted a request for a
divorce and a comprehensive financial settlement to the Kreisgericht
Untertoggenburg-Gossau in the Canton of St Gallen. The request was in
these terms:
1. The husband and wife jointly request that the District Court
Untertoggenburg dissolve their marriage concluded in Southend-on-Sea
(England) on 15th December 1979 based on Article 111 of the Civil Code.
2. Since we both have earned income of our own and each spouse can
support himself/herself, we are mutually dispensing with the payment of
maintenance contributions.
3. With regard to property rights the husband and wife declare and agree
the following:
3.1 Each party is to retain the bank accounts and bank deposits currently
in his or her name.
3.2 Likewise each spouse is to retain the other assets in his or her name
and the items in his or her possession.
3.3 The husband and wife expressly declare to the District Court
Untertoggenburg-Gossau that with regard to their property rights their
mutual claims are settled.
4. Since both spouses have a pension fund of their own, they mutually
waive any pension rights adjustment.
5. The husband and wife shall each bear half of the court fees. Each
spouse shall pay for any legal advice himself/herself.
On 18 January 2007 the request came before Dr Pfister, the President of
the Court, who approved it and ordered a two month period of reflection.
His file note is as follows:
“The parties have requested a joint hearing from the outset. I would first
confirm the personal particulars. The forename and the maiden name
of the wife’s mother is: SK. The forename and the maiden name of the
husband’s mother was: HJ. The husband was born at the place of the
marriage, i.e. in Southend-on-Sea in the county of Essex in England.
The solicitor Michael Hüppi has assisted the spouses in drawing up the
divorce settlement. The spouses are at present still living together, but
see each other rarely, as the husband is a cameraman and is generally
away during the week. As from August 2007, he expects to obtain
permanent employment, from which he will earn between CHF 60.000
and CHF 70.000 per annum. Both spouses have a pension within the
meaning of the AHV [Old Age Pensions Regulation], the wife in Germany
and in Switzerland, the husband in England. The husband also has a
company pension in England and the wife has a small company pension
in Switzerland. As the various systems are scarcely compatible, both
spouses have waived the right to a pension rights adjustment. I discussed
the settlement with the spouses and there were no amendments. The wife
is happy for her maiden name Z not to be mentioned if possible, including
in the final decree. She apparently has bad memories in that regard, as
when I asked her about it, she broke down in tears. Having discussed the
matter in full, I imposed a 2-month period for reflection for the spouses
and provided them with the prepared declaration of confirmation.”
On 28 March 2007 the agreement was made a final order by Dr Pfister.
From the terms of the ruling it can be seen that Dr Pfister had before
him a copy of the parties’ joint 2005 tax return. This records the parties’
assets in Switzerland and abroad. In line 31 alongside the legend
Liegenschaften (real property) is recorded the value of CHF 400.000.
This is a reference to the London flat. That figure is carried to line 33 as
part of a total figure of CHF 430.001 which bears the legend “Total der
Vermögenswerte” (total assets). The word Vermögenswerte appears in
clause 3.2 of the agreement. Yet H says that he was not aware that clause
3.2 embraced real property. He says “I was not aware at the time that the
Swiss Order encompassed our English property”.
Miss Gray makes the point that the agreement, approved as an Order,
only seems to address property to which the parties were solely titled.
It does not address their joint bank account or a joint policy. Moreover,
the tax return to which the judge referred stated, correctly as at 2005,
that the flat was jointly owned. The judge must be taken to have been
intending to approve the continued joint ownership of the flat. Thus it is
submitted that if the order in fact confirms the sole ownership of the flat
by W then it is flawed by a mistake.
If that is so then one would expect that there would be remedies available
to H to rectify what he says is a mistaken order. H has taken advice in
Switzerland and that is to the effect that his chances of successfully
rectifying the order are remote indeed because of his failure to draw
the alleged agreement of continued co-ownership to the attention of
the court and on account of delay in mounting the claim. So it is that H
comes to this court – to remedy supposed deficiencies in the Swiss law of
rectification.
The Brussels and Lugano Conventions and the Brussels I Regulation
In Agbaje Lord Collins pointed to what he termed an area involving
“difficult questions” where the foreign order comes from a jurisdiction
bound by the Brussels/Lugano Conventions or the Brussels I Regulation.
He stated:
55. But, although the point does not arise on this appeal, a warning
note must be struck about the position with regard to States to which
Council Regulation (EC) 44/2001 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters („the Brussels
I Regulation“) applies. The effect of sections 15(2) and 28(4) of the 1984
Act is that the jurisdictional provisions of Part III and Part IV respectively
are subject to the Brussels I Regulation (and the Lugano Convention).
Those sections do not address the question whether a judgment in a
Brussels I Regulation State making financial provision on divorce (or
refusing to make such provision) would be entitled to recognition so as to
prevent an award under Part III or Part IV.
56. For the purposes of the Brussels I Regulation and the Lugano
Convention there is a distinction between “maintenance” which is within
the scope of the Regulation (Article 5(2), which confers jurisdiction on the
courts of the maintenance creditor’s domicile, in addition to that of the
debtor’s domicile under Article 2); and “rights in property arising out of a
matrimonial relationship” (“régimes matrimoniaux”) which are expressly
excluded from the scope of the Regulation. These are autonomous
concepts: Case 143/78 de Cavel v. de Cavel (No 1) [1979] ECR 1055;
Case 120/79 de Cavel v. de Cavel (No 2) [1980] ECR 731. The Brussels
II Revised Regulation (Council Regulation (EC) 2201/2003 on jurisdiction
and the recognition of judgments in matrimonial matters and matters
of parental responsibility) does not apply to the “property consequences
of the marriage or any other ancillary measures” (Recital (8)), or to
“maintenance obligations” (Recital (11)).
57. It is only necessary to mention that if an award of maintenance had
been made in another Member State, the question might arise as to
whether the application in England under Part III would be precluded
on the basis that the issue of maintenance had been determined in the
other jurisdiction and that that determination was entitled to recognition.
That would depend, at least in part, on whether the application was to be
characterised as relating to maintenance or to rights in property arising
out of a matrimonial relationship. Case C-220/95 Van den Boogaard v.
Laumen [1997] ECR I-1147, [1997] QB 759 shows that a transfer of
property may be in the nature of maintenance if it is intended to ensure
the support of a spouse; but a transfer of property which serves only the
purpose of a division of property is not in the nature of maintenance,
and concerns rights in property arising out of a matrimonial relationship.
See also Schlosser Report on the Accession Convention to the Brussels
Convention ([1979] OJ C59), paragraph 50; Moore v. Moore [2007] 2 FLR
339 (CA). This is an area which involves difficult questions which do not
arise for decision on this appeal.
Unfortunately for these parties those very difficult questions do arise
directly on this application.
Switzerland is of course a Lugano Convention country. The Lugano
Convention of 1988 became part of English law by means of the Civil
Jurisdiction and Judgments Act 1982. It is virtually identical to the
Brussels Convention of 1968 (part of English law by means of the Civil
Jurisdiction and Judgments Act 1982). The Brussels I Regulation No 44 of
2001 is in turn modelled on the earlier Conventions.
The framers of the 1984 Act were well aware of the existence of
the Brussels Convention in English law. It is referred to in the Law
Commission Report. Under Article 1 of all three instruments it is expressly
stated that the Convention/Regulation does not apply to rights in
property arising out of a matrimonial relationship. But they all apply
to maintenance and will continue to do so until next year when the
Maintenance Regulation comes into effect. In fact there are special rules
about maintenance in Art 5(2) of each instrument.
In this case there is a Swiss (consent) judgment waiving maintenance
claims. As such it is entitled to near automatic recognition under Title
III of the Lugano Convention. The grounds for non-recognition specified
in Arts 27 and 28 would not apply on the facts of this case. And Art 29
states that “under no circumstances may a foreign judgment be reviewed
as to its substance”.
Thus it seems to me that were H’s application under s. 13 to amount to a
claim for “maintenance” then it would be impossible to pursue as it would
be in irreconcilable conflict with the Swiss judgment dismissing that claim
which has as much force as a domestic judgment to equivalent effect.
This is accepted by Miss Gray, who is emphatic that H’s claim is not for
maintenance.
Indeed if H’s claim is governed by the Lugano Convention then by s. 15(2)
of the 1984 Act the jurisdictional requirements are modified to bring
them into line with that applicable to that Convention. That would require
either H or W to be actually resident in England and Wales (see s. 41 CJJA
1982). As neither is, then H’s claim could not be entertained. Absent the
Lugano factor jurisdiction is claimed on the ground that H is domiciled
here in the common law sense. That is certainly arguable, and I have no
difficulty in finding that jurisdiction under s. 15(1) has been prima facie
established. So it can be seen that the Lugano factor looms large in the
key matter of the jurisdictional threshold.
So the central question is: does H’s claim have a maintenance element? If
it does then it is clear to me then it cannot proceed for the reasons I have
identified.
In Agbaje at paragraph 57 (cited above) Lord Collins observed that in Van
den Boogard v. Laumen the ECJ supplied a liberal interpretation to the
concept of maintenance. It was as follows:
(21) Owing precisely to the fact that on divorce an English court may,
by the same decision, regulate both the matrimonial relationships of
the parties and matters of maintenance, the court from which leave to
enforce is sought must distinguish between those aspects of the decision
which relate to rights in property arising out of a matrimonial relationship
and those which relate to maintenance, having regard in each particular
case to the specific aim of the decision rendered.
(22) It should be possible to deduce that aim from the reasoning of the
decision in question. If this shows that a provision awarded is designed
to enable one spouse to provide for himself or herself or if the needs
and resources of each of the spouses are taken into consideration in
the determination of its amount, the decision will be concerned with
maintenance. On the other hand, where the provision awarded is solely
concerned with dividing property between the spouses, the decision
will be concerned with rights in property arising out of a matrimonial
relationship and will not therefore be enforceable under the Brussels
Convention. A decision which does both these things may, in accordance
with Art 42 of the Brussels Convention, be enforced in part if it clearly
shows the aims to which the different parts of the judicial provision
correspond.
(23) It makes no difference in this regard that payment of maintenance
is provided for in the form of a lump sum. This form of payment may also
be in the nature of maintenance where the capital sum set is designed to
ensure a predetermined level of income.
(24) In the present case, as the Advocate General points out in paragraph
59 of his Opinion, the court of origin was under an obligation to consider
whether it had to impose a clean break between the spouses and to order
payment of a lump sum instead of periodical payments. It is clear that the
choice of method of payment made by the court of origin cannot alter the
nature of the aim pursued by the decision.
(25) Likewise, the fact that the decision of which enforcement is sought
also orders ownership in certain property to be transferred between the
former spouses cannot call in question the nature of that decision as an
order for the provision of maintenance. The aim is still to make provision,
by means of a capital sum, for the maintenance of one of the former
spouses.
I draw attention to the word “solely” in paragraph 22 of the judgment,
which I have emphasised. It seems to me that if an ancillary relief award
contains as an ingredient (to any material degree) the satisfaction of
needs, then it will be not be “solely” concerned with the division of
property between spouses. This will be the case whether the needs are
for accommodation or income; and whether they are satisfied by way of
Duxbury lump sum or periodical payments; or by the supply of one or
more homes; or by pension sharing.
In Moore v. Moore (cited by Lord Collins) at paragraph 80 the Court of
Appeal stated:
[80] The ruling by the European Court was that a lump sum payment
was to be regarded as maintenance if its purpose was to ensure the
former spouse’s maintenance. Although its formulation differs slightly
from that of Jacobs AG (who spoke of the ‘essential object’ of the order
for payment), the European Court expressly approved much of Jacobs
AG’s opinion. The following propositions may be derived from this
decision: first, whether a claim is for maintenance depends upon an
autonomous interpretation of the term, and the label given to the claim
by national law is not decisive; secondly, payment of a lump sum or
transfer of property may be in the nature of maintenance if it is intended
to ensure the support of a spouse; thirdly, payment of a lump sum
or transfer of property which serves only the purpose of a division of
property or compensation for non-material damage is not in the nature
of maintenance; fourthly, a payment or transfer of property intended
as a division of assets will concern ‘rights in property arising out of a
matrimonial relationship’; fifthly, whether a claim relates to maintenance
will depend on its purpose, and in particular whether it is designed to
enable one spouse to provide for himself or herself or if the needs and
resources of each of the spouses are taken into consideration in the
determination of its amount, or where the capital sum set is designed to
ensure a predetermined level of income; sixthly, where the provision is
solely concerned with dividing property between the spouses, the decision
will be concerned with rights in property arising out of a matrimonial
relationship and will not therefore be enforceable under Brussels I.
Both the ECJ and the Court of Appeal have assumed that it is in fact
possible to have an ancillary relief award that does not contain an
ingredient of the meeting of need. Far be it for me to challenge such a
view. But I do wonder if this is in fact possible under English law. After all,
under s. 25(2)(b) of the 1973 Act the Court is obliged to take into account
in every case the needs obligations and responsibilities which each of the
parties has or is likely to have in the foreseeable future.
Under the new ideology promulgated by the House of Lords in Miller
[2006] 2 AC 618 we know that the “principles” or “rationales” that justify
a redistribution of property are needs, compensation and sharing. The
most common rationale is stated to be needs (see paragraph 138 per
Baroness Hale). But these principles or rationales have been stated time
and again not to amount to formal independent heads of claim, allowing
someone to come along to court saying (say) “I am only applying under
the principle of sharing”.
Thus in McFarlane No 2 [2009] 2 FLR 1322 Charles J stated:
111. These are expressions of the rationale to be applied to achieve the
objective of a fair result. Fairness is the overarching objective or principle
and the principles of need, compensation and sharing identify bases of
reasoning to be applied to achieve it.
112. It follows that they should not be given a free standing life,
interpretation or application as if they were themselves part of the statute
rather than descriptions of the approach to the reasoning to be used
in applying the statute to achieve a fair result (see for example C v. C
[2009] 1 FLR 8 at paras [31] to [36]).
And in Hvorostovsky v. Hvorostovsky [2009] 2 FLR 1574 CA Bodey J
stated at paragraph 42:
There are, of course, cases where a concise analysis of the identified
concepts of ‘needs, contributions and sharing’ is a necessary and helpful
intellectual tool in written or verbal or argument, provided these concepts
are not elevated to the status of heads of claim. However (because
ancillary relief cases tend to be fact-specific and depend essentially on
the exercise of a broad discretion in the pursuit of fairness) there are also
many cases where a lengthy over-sophisticated approach of this type is
an unnecessary diversion, which burdens rather than assists the court.
During argument I described the English approach to equitable
distribution, so alien to that obtaining in civil law countries, as holistic. I
adhere to that. The approach is never to assess the award by reference to
the principles or rationales as if they are separate heads of claim. Rather,
the results suggested by the separate principles or rationales coalesce in
the decision making process in a highly fact-specific way. So, for example,
Mrs Lambert’s claim for £ 10m was being equally justified by reference
to both needs and sharing. Even Mrs Charman’s £ 48m contained an
ingredient for the satisfaction of need, even if other factors “elbowed
aside” that factor.
In this case Miss Gray says confidently that H does not seek any
maintenance in any shape or form. He just seeks his fair share of
matrimonial property. So I asked whether it would be H’s case when and
if his case is heard that he would accept that he has no needs at all. Miss
Gray rather ducked this question. Mr Wood has rightly pointed out that on
the evidence H positively asserts his limited capital base in his affidavit at
paras 16 and 18 and even goes so far to say in his statements made in
the Land Registry proceedings that
With a very demanding job, it would be absurd to give away the London
flat, my principal security not only for my old age but, if I am unlucky, for
the near future too.
Thus, thankfully, I do not have to decide the very difficult question
whether it is in fact ever possible to banish needs from an English
ancillary relief exercise. On the facts of this case there can be no doubt
that H’s claims, were it to be allowed to proceed, would be founded to a
large measure on need. It is significant that Lord Collins’ third primary
piece of guidance in paragraph 73 is that “where possible the order should
have the result that provision is made for the reasonable needs of each
spouse”. That is plainly the track down which this case would go were it
permissible to do so. But needs is forbidden territory under the Lugano
Convention.
Conclusions
There is a significant Lugano impediment in H’s way both in terms of the
modified basis of jurisdiction under s. 15(2) and in terms of the prior
Swiss judgment which is entitled to recognition. But even if the Lugano
factor were not in play I would consider it extremely improbable that H
would be able to persuade a court hearing this matter substantively that
he did not understand what he was doing when he signed the TR1 and
the Swiss divorce settlement. Thus we have here a classic foreign post-
nup, but in this case bolstered by a foreign order. In Macleod [2009] 1
FLR 641 the Privy Council at paragraph 41 stated that in a domestic case
where there was a post-nup at large a test of manifest injustice should
be applied in deciding whether it should be upheld. Even though there
is no counterpart to s. 35 MCA 1973 in Part III I would be surprised if a
different test were applied. Of course I am alive to Lord Collins’s sweeping
away of an accumulation of judicial glosses that had piled up on Part
III but I would be most surprised if he were saying that a different test
should apply to a post-nup being considered under Part III as compared
to one being considered under ss. 25 and 35 of the 1973 Act. After all, his
second primary head of guidance in paragraph 73 is that “it will never be
appropriate to make an order which gives the claimant more than she or
he would have been awarded had all proceedings taken place within this
jurisdiction”.
Added to all of H’s problems is the fact that he has been guilty of
unexplained and unreasonable delay in making this application. On his
case W changed the locks on the flat in April 2008. He can have had no
doubt that W was asserting her rights as sole owner from that point. Yet
he took until 30 September 2009 to make his application. That is far too
long in the circumstances of this case.
My assessment is that the prospects of H obtaining a substantive order
are slim indeed. My probability needle does not.