The parties, both Russian nationals, were divorced in Russia in 2014. Although accepting that she had not mounted a needs-based argument before the Russian court, the wife contended that the financial provision which it had made was inadequate and that the husband’s position, wealth and connections meant that she had never had a hope of achieving that to which she was entitled. Pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 she sought the leave of the court pursuant to section 13(1) to apply for financial relief, which was granted at an ex parte hearing. The wife’s case was that section 16(1)(2), which would otherwise require the court to dismiss the application for financial relief if not satisfied that, in all the circumstances of the case and on consideration of the relevant factors, it would be appropriate for such an order to be made by a court in England and Wales, was disapplied by section 16(3) of the 1984 Act in a case where there was a maintenance element. The husband applied, pursuant to FPR r 18.11, for leave to set that order aside on the grounds of misrepresentation and breaches of the high duty of candour on the part of the wife.
On the applications—
Held, application to set aside granted. Application for leave to apply for financial relief dismissed. (1) Being satisfied on the facts that the grant of leave to the wife had been given as a result of material misleading of the court, however unintentional that might have been, it therefore followed that the leave granted ought to be set aside and the wife’s application determined afresh (paras 59, 60).
(2) The effect of section 16(3) of the Matrimonial and Family Proceedings Act 1984 was to disentitle a judge from dismissing a claim by an applicant for maintenance (used in the sense of a needs-based claim, whether capital or income) solely on the basis of the absence of connection of such applicant. It would not be inconsistent with that to dismiss a claim, if appropriate, on grounds relating to matters other than the habitual residence/connection of the applicant with England and Wales, but, in applying the section 16(2) factors, weight had to be given to the wife’s habitual residence in the jurisdiction. While accepting that the wife had suffered hardship and that the award she had received would probably not, in an English case based on the facts, be likely to meet her reasonable needs, this was a classic example of a spouse whose background and married life was firmly fixed in her home country and who had no connection with England, whether by presence of the parties or their assets or business activities, seeking after the breakdown of the marriage to take advantage of a more generous approach to her claims than she had been able to achieve in her home country after the fullest possible use of its legal system. It was not proper for the court to focus on needs to the exclusion of the other section 16 factors which here militated strongly against her claim proceeding. The fact that the wife had suffered what she regarded as a very significant injustice in that other country and had come to England after the breakdown of the marriage did not in itself make the case appropriate for determination in England and Wales and there was no solid basis for making an award (paras 79, 85, 91–93).
Tim Bishop QC and Rebecca Bailey-Harris (instructed by Payne Hicks Beach) for the husband.
Charles Howard QC and Deepak Nagpal(instructed by Hughes Fowler Carruthers) for the wife.