(Family Division, Parker J, 29 November 2013)
The Saudi husband and wife were married by Nikah in London but 7 years later the wife applied for nullity in England where their three children were living. The husband challenged the jurisdiction of the English court on the basis that the wife was not habitually resident here and sought a return of the three children.
A consent order was made providing for the children to return to Saudi Arabia, a property in Jeddah to be transferred into her sole name, ongoing specific financial provision for the wife and children, and for the husband to pronounce an irrevocable Talaq in Saudi Arabia. Both parties had since claimed the other was in breach and attempted to bring contempt proceedings which were eventually settled.
The wife was granted leave to activate an application under Part III of the Matrimonial and Family Proceedings Act 1984 which was overturned on appeal due to the fact that a marriage which did not purport to be performed under the Marriage Acts was not a void marriage within s 11 of the Matrimonial Causes Act 1973 and, therefore, not a marriage within the MFPA. The wife now applied for monetary compensation for breach of undertakings given in earlier proceedings governing financial arrangements which formed the basis of the Part III claim.
A deputy judge found that the husband was in breach of three undertakings: failure to index link, failure to pay the requisite number of the wife's staff, and failure to maintain and keep the Jeddah property in good repair. The district judge found against the husband on his claims that the wife was in breach of the orders in relation to their children. The Court of Appeal allowed the husband's appeal and an order for costs was made against the wife.
The wife had in the meantime issued an application for specific performance of the undertakings, damages, a release of the husband from his obligation to pay a lump sum in respect of unpaid sums and capitalisation of future liabilities, variation of undertakings to provide for payment of liquidated sums, enforcement of undertakings, and sale of the London property.
The wife wished to rely on the deputy judge's finding of the husband's substantial breach of the undertakings while the husband submitted that the entirety of the order, including findings of fact, had been overturned by the Court of Appeal. During the hearing the wife conceded that she could not proceed with a claim that the findings of the deputy judge estopped the husband from denying a breach, based on established authority that when an appellate court overturned a decision, that decision was avoided ab initio and replaced by the appellate decision.
On the issue of costs the court was engaged with determining a discrete preliminary issue, not the substantive enforcement proceedings and, therefore, whether the matter proceeded under the CPR or FPR did not matter. The overriding feature was that the proposition advanced on behalf of the husband was based on established authority and was unanswerable. The wife would, therefore, be responsible for meeting the husband's costs on the preliminary issue.
Furthermore, the deputy judge's findings were not comprehensive and many new issues had arisen. Had the court not found in favour of the husband on the estoppel issue there would have been grounds to revisit the judge's findings in the context of the wife's enforcement application.