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Hayley Trim's Analysis: Conventional Impediments in Part III Claims

Date:3 SEP 2010

Hayley Trim, Family Law PSLThe Supreme Court decision in Agbaje v Agbaje [2010] UKSC 13 highlighted the increased potential for bringing a claim for financial relief following a foreign divorce under Part III Matrimonial and Family Proceedings Act 1984, and this was further reinforced by the comments of the Court of Appeal in Golubovich v Golubovich [2010] EWHC 1754 (fam). But in Agbaje, Lord Collins raised a "warning note" about the application of Part III to cases where the foreign divorce was a party to Brussels I or the Lugano Convention. He noted that the question might arise as to whether the Part III application would be precluded on the basis that the issue of maintenance had been determined by the other member state and was entitled to recognition.

This leads to the question of when an ancillary relief award is in the nature of maintenance (and so entitled to recognition under Brussels I and Lugano), and when it is simply the division of property arising out of a matrimonial relationship (which is expressly excluded from Brussels I and Lugano). This issue did not require decision in Agbaje where the foreign jurisdiction was Nigeria, but it was considered further by Mostyn J in the case of CG v IF [2010] EWHC 1062 (fam).

The couple had transferred an English property from joint names into the wife's sole name and shortly afterwards submitted an agreement to the Swiss Court to the effect that the marriage would be dissolved, they would each keep their own property and there would be no maintenance payments. This was duly approved by order of the Swiss court. The husband then claimed that there had been a mistake and the English property was not intended to form part of the Swiss divorce agreement. He was advised in Switzerland that the chances of rectifying the order were very slim and applied to the English Court for permission to apply under Part III. 

In refusing permission, Mostyn J observed that the husband was faced with a significant Lugano impediment. Insofar as it waived maintenance claims, the Swiss order was entitled to near automatic recognition under the Lugano Convention (the same would apply to a member state of the EU under Brussels I). He went on to say that an ancillary relief award that contains as an ingredient (to any material degree) the satisfaction of needs is not solely concerned with division of property and Lugano (or Brussels I) would therefore bite. Mostyn J wondered whether it was possible under English law to have an ancillary relief award that does not contain a needs element given the obligation under s 25 MCA 1973 to take needs into account in every case. Here the husband's claim would in any event be founded to a large measure on needs which is forbidden territory under Lugano and so the claim would fail, but there will no doubt be more borderline cases in the future (although whether the court would be sympathetic to an applicant if there was no needs element at all is another matter).

Furthermore, Mostyn J considered that the existence of the Swiss consent order created a classic foreign post-nup situation and it would be very unlikely if the principles in Macleod v Macleod [2009] 1 FLR 641did not apply to bind the parties to their agreement. After all, Lord Collins stated that an award under Part III would never be greater than if the matter had been decided entirely in this jurisdiction.

Mostyn J interpreted the "solid" or "substantial" ground required for permission to proceed under Part III as a chance of success equal to or greater than 50%. In CG v IF his "probability needle" flickered much lower. The husband's claim failed for a number of reasons, including his delay in bringing the claim, however it appears that where the foreign jurisdiction is a Brussels I or Lugano signatory, or there is a consent order, the chances of a Part III claim succeeding are slim.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.