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Sandra Davis' Week: Golubovich v Golubovich

Sep 29, 2018, 17:29 PM
Delivering the lead judgment on Tuesday in Golubovich v Golubovich [2010] EWCA Civ 810, Lord Justice Thorpe concluded with a withering assault on "the rich who fight to establish priority" between competing jurisdictions to try their divorces.
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Golubovich v Golubovich 

Sandra DavisDelivering the lead judgment on Tuesday in Golubovich v Golubovich [2010] EWCA Civ 810, Lord Justice Thorpe concluded with a withering assault on "the rich who fight to establish priority" between competing jurisdictions to try their divorces.

The facts are unimportant other than the husband (who came from a hugely wealthy Russian family) and his Russian wife had lived in London following their marriage.  When the marriage broke down he invoked the jurisdiction of the Russian Courts and she the English Courts. The husband won the race to a decree by, it seems, allegedly forging documents. He was then subjected to a Hemain injunction precluding him from taking any further steps in Russia to rectify his divorce there. Nevertheless, having been made aware of these shenanigans and the existence of the injunction, the Russian Court, on his application, granted him a divorce.

The wife's reaction was to seek an order from the English Courts refusing recognition of the Russian decree.

Allowing the husband's appeal, the Court of Appeal held that the Russian Court had found itself with jurisdiction to dissolve a marriage between Russian citizens and, absent any treaty with this jurisdiction, found itself unfettered by the existence of the Hemain injunction.

Castigating the waste of domestic judicial resources that could more properly have been applied in resolving internal matrimonial and other disputes, Lord Justice Thorpe made two central points.

First, the much maligned first past the post system applicable to EU member states would, if more generally applicable, have avoided this unnecessary, time consuming and expensive jurisdictional battle. England was the jurisdiction first seised and, under the Brussels regulations, that would have been the end of the matter.

Secondly, this entire exercise was about money and not the dissolution of the marriage. On any analysis, the grant of leave to the wife under the Matrimonial and Family Proceedings Act 1984 s.13 was a foregone conclusion. Whether she had to seek relief under Part III of that Act or under the Matrimonial Causes Act 1973 she was going to obtain a significant award.

I have a problem not with the sentiment, but with the reality.

For so long as London remains, or is perceived to remain, the world's divorce capital, the tensions identified by Lord Justice Thorpe will continue. International high net worth couples with a choice of jurisdiction will continue to litigate in England because the ratio in Agbaje v Agbaje [2010] UKSC 13 makes it clear there is a material difference between a Part III application and a full blown s.25 enquiry. 

As Lord Collins made clear in Agbaje "where the English connections of the case are very strong there may be no reason why the application should not be treated as if it were made in purely English proceedings". The argument to be run where the connection is slender, albeit sufficient to found jurisdiction, is obvious. 

The more interesting point though is whether the existing Brussels regulations are actually the panacea to the overburdening of our divisional Court. Whether Part III relief is available to a spouse who has lost the jurisdictional race to another competent EU member state was raised but not answered by the Supreme Court in Agbaje

No doubt there's a case on point out there waiting to be allocated to one of the 17 judges of the Family Division so that the inevitable appeals process can commence in earnest.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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