Andrew Moore, Trainee Solicitor
Family Law - September 2007
Prior to the Matrimonial and Family Proceedings Act 1984 (‘MFPA’) the English courts did not have jurisdiction to deal with ancillary relief proceedings where the divorce decree had been made elsewhere. This even applied to matrimonial property within this jurisdiction. Following the recent case of Moore v Moore [2007] EWCA Civ 361, where £1.5m was collectively spent by the parties in legal fees primarily to decide whether it would be the English or Spanish courts which would hear the ancillary relief application (even though it was agreed by all concerned that the relevant law was English law), it seems a logical time to remind practitioners of the substantive law, procedures and principles in this important, but for most solicitors unfamiliar, area of ancillary relief.
There are two main reasons for making an application under Part III of the MFPA:
1. To enforce an order from a foreign jurisdiction:
It is unlikely that leave will be granted in this case if the applicant has not exhausted all avenues of redress and enforcement mechanisms in the jurisdiction that he/she had submitted to for the divorce. In Hewitson v Hewitson [1995] 1 FLR 241 Butler-Sloss LJ refused leave on this basis alone. Indeed if the party has revived proceedings in the original jurisdiction this will also be a reason to refuse leave as demonstrated in the case of Jordan v Jordan [1999] 2 FLR 1069 where Thorpe LJ, at 1082, refused leave based on the fact that the wife had revived proceedings in the USA as well as making an application under Part III of the MFPA. Leave was refused, in part, due to the fact that the wife’s motives for invoking a secondary jurisdiction were not fully explained and because it was obvious that the centre of gravity of litigation was firmly in California.
Leave will also be barred if enforcement could be dealt with by other legislation such as the Maintenance Orders (Reciprocal Enforcement) Act 1972 (MO(RE)A) or through common law. The MO(RE)A, in particular, is not appropriate in every case as not every foreign country is covered by the legislation, nor does it cover orders in relation to property or capital. It is therefore imperative that each case, as stated by Dillon LJ in Holmes [1989] 2 FLR 364 at page 375, ‘be considered on their own circumstances and merits’. The MFPA, in contrast, will offer appropriate recourse in relation to property in this jurisdiction even if the order of the English court is limited to this asset alone due to the jurisdictional requirements pursuant to s.20 MFPA.
Even if the Applicant has exhausted all avenues of redress in their original jurisdiction it does not necessarily follow that leave to apply under Part III of the MFPA will be granted . In M v M (Financial Provision After Foreign Divorce) [1994] 1 FLR 403, the French courts, on appeal, refused the wife’s application for an advance on the distribution of matrimonial property. The wife made a subsequent application under the MFPA and was granted leave which was overturned on appeal before Thorpe J. Leave was refused on the basis that, although the wife had pursued her rights in France to a very full extent, France was a court of competent jurisdiction which, as Thorpe J explained at page 404, applied ‘criteria not dissimilar from s 25 of the MCA 1973 as amended’ and that, in line with the principle of comity, French orders should be recognised and respected. Thorpe J at page 405 commented that the wife had ‘exhausted all her rights within the jurisdiction that pronounced the divorce and was simply seeking a second bite of the cherry’.
2. To address situations where the court in question declines jurisdiction to deal with a certain area of ancillary relief.
Purchas LJ at page 373 of Holmes explains that the most obvious cases which will seek recourse under Part III of the MFPA will be those cases from ‘jurisdictions where there simply are not any provisions to grant financial relief….then the courts in this country are empowered to step in and fill the gap.’ These are the type of cases mostly likely to be result in successful applications.
Who can Apply?
Applications under Part III of the MFPA may be made where i) a marriage has been ended by overseas proceedings recognised in England and Wales and ii) either domicile, one year’s habitual residence or the existence of a matrimonial home within the jurisdiction can be established (s 12 and s 15). It is an important point to note that if the only fact establishing jurisdiction is the existence of matrimonial property in England and Wales, then the court can only make an order in relation to that property and not an income order.
Leave
Section 13 of the MFPA provides for leave to be sought for every application for financial relief and that the ‘court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order’. In order to make a decision the court must give due regard to s 16 of the MFPA and in particular s 16(2). Purchas LJ in Holmes stated that if the application was certain to fail should leave be granted ‘then it would clearly be wrong for the court to grant leave at the first instance.’
Section 16(2) has a list of factors which have to be taken in to account including, among others, the connection the parties to the marriage have with England and Wales, any financial benefit which the applicant or a child of the family has received or is likely to receive, the availability of financial relief from another country (more than likely the jurisdiction where the divorce took place) and the length of time which has elapsed since the date of the divorce, annulment or legal separation.
There is no evidence that hardship is a necessary pre-requisite should the foreign jurisdiction fail to deal with part of the finances altogether (cf. Thorpe LJ in Jordan).
The effect of leave being granted is that, according to sections 17 and 18 of the MFPA, the application is transformed in to a conventional ancillary relief application with the factors of s.25 of the Matrimonial Causes Act 1973 being considered, however unusual the background to the case may be.
Claims on behalf of the Applicant or children may include a claim for financial provision, property adjustment and sale orders (MCA 1973 ss23-24A and MFPA s 17), interim orders for maintenance (MFPA s 14 and FPR 1991 r 3.18(4)), an avoidance of transaction order (MFPA s 23 and FPR 1991 r 3.18(4)) and a transfer of a contractual or statutory tenancy (MFPA s 22 and FPR 1991 r 3.18(7). The summons must identify a number of points in accordance with FPR 1991 rr 2.59, 3.18(3),(6),(7).
How to Apply
Application is made without notice by originating summons on Form M25 out of the Principal Registry. This must be supported by an Affidavit setting out formal details required by FPR 1991 r 3.17(2), grounds for jurisdiction pursuant to MFPA s 15 and all facts relied on which will in reality amount to working through the s 16(2) factors. Thorpe LJ in M v M at page 403 stated there was a clear obligation for a party to inform the respondent’s representation if they were to move from an inter parte hearing to an ex-parte hearing, thus giving the respondent the chance to ‘voice their protest’. As with all ex-parte applications full facts must be disclosed otherwise the respondent is entitled to have the order granting leave set aside with costs. There is a court fee of £30.
The Affidavit should set out details of the foreign proceedings as well as stating:
(a) the names of the parties and the date and place of the marriage;
(b) the occupation and residence of each party;
(c) whether there are children of the family and, if so, their full names and dates of birth;
(d) whether each party has remarried (note that if an applicant remarries this will bar the right to apply under MFPA s 12(2), (3) even if the marriage is void or voidable).
(e) an estimate in summary form of the rough amount or value of the capital resources and net income of each party and any children;
(f) the grounds on which it is alleged that the court has jurisdiction to entertain the application.
Once leave has been granted, an originating summons on Form M26 will be issued and served on the respondent together with the Affidavit. There is a court fee of £80. Service abroad will be in accordance with RSC Order 11, rules 5 & 6 and the solicitor should consider the applicable mode of service for the country in question. Practitioners are reminded of the need to seek advice from specialist family lawyers of the foreign jurisdiction in question in this regard.
The respondent is most likely to be the other party to the marriage. It may, however, also include a mortgagee, a party to whom property has been transferred to defeat a claim or any other third party who has an interest in the property. The respondent, pursuant to FPR 1991 r 3.18(5), has 31 days to file an acknowledgement of service and thereafter a further 28 days to file an Affidavit in response to the application.
As in conventional ancillary relief cases a district judge may give directions from the Principal Registry or County Court. If a settlement is reached it will be embodied in a Consent Order accompanied by Form M1 Statement of Information. The substantive hearing will be heard by a circuit judge sitting in the High Court. The circuit judge will be able to order, after considering factors under s 25 MCA 1973, periodical payments, secured periodical payments and lump sums. However no interest is awardable on the lump sum. Property adjustment orders, orders for sale, transfer of a statutory or contractual tenancy or the setting aside of a disposition made with the intention of defeating a claim for financial relief are also available.
Conclusion
There is little certainty as to whether an application under PART III of the MFPA will succeed or not, given that each case is decided on its own facts. This is best demonstrated by two different cases before Butler-Sloss LJ. In Hewitson she stated that ‘there has to be finality and an end to litigation.’ Compare this to her submissions in the case of Lamagni v Lamagni [1995] 2 FLR 452 where she responded to the judge’s decision at first instance to refuse leave based on the length of time which had elapsed from the original financial order as a ‘Draconian step’. This can only give further weight to the fact that there is no hard and fast rule as to whether a lapse of time or any other factor under s 16 (2) will prove pivotal, or indeed fatal, in an application under the MFPA. Judges’ decision making in this area is therefore, as recognised by Thorpe LJ in Jordan, ‘restrictive and negative in conclusion, defining and policing the boundary between relieving hardship in the paradigm case and disqualifying the forum shopper for the applicant seeking a second bite of the cherry.’
For further information contact a member of the Family & Divorce Law team or call 020 7940 4000.
