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M v W [2014] EWHC 925 (Fam)

Date:4 APR 2014
Law Reporter
(Family Division, Coleridge J, 2 April 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 1 FLR 465]

Financial remedies - Property agreement in New Zealand - Application for maintenance
The wife was refused leave to apply for spousal maintenance following a final separation agreement in New Zealand.
The husband and wife were married for 20 years and had three, now adult, children together. The husband was an officer in the British Army and in 2001 the family relocated to New Zealand with the husband joining them in 2005 when he had finished his final tour of duty.
When the marriage broke down the husband and wife entered into a separation and relationship property agreement following negotiations between specialist lawyers. The agreement provided for the wife to retain the net proceeds of sale of the family home while the husband would retain his armed forces pension and war disablement pension in addition to five endowment policies, bank accounts and superannuation. It expressly placed no liability on the husband to pay spousal maintenance. He would pay the youngest child's school fees in lieu of child support. Decree nisi was pronounced and the wife thereafter returned to England. She now regarded herself as domiciled and habitually resident here. The husband remained in New Zealand with his new partner
In 2010 the wife applied to the New Zealand court to set aside the agreement but withdrew the application and instead applied in England under Part III of the Matrimonial and Family Proceedings Act 1984. The wife was granted permission to apply and the husband sought to set aside that decision and to strike out the application.
An expert in New Zealand law provided evidence as to the lawfulness of the agreement and reported that pursuant to the Property (Relationship) Act 1976 a properly constituted agreement was a final and binding settlement and there was no requirement for it to be converted into a full order.
Everything that could be done to ensure the agreement was full, final and binding was done. The husband and wife agreed that they had full disclosure and proper legal advice. At the permission hearing the wife claimed she entered into an agreement under pressure from the husband. She had since suffered from leukaemia which affected her capacity to work while the husband was employed in New Zealand earning £66,000pa. The wife now sought spousal and child maintenance.
The court had jurisdiction to hear a claim under the Maintenance Regulation by virtue of the wife being a creditor, albeit a potential creditor. It was clear that the judge was no aware or misunderstood the true effect of the agreement. He appeared to be under the impression that court approval was required. Therefore, the decision had to be set aside.
The onus was on the wife to establish in accordance with Agbaje v Agbaje [2010] UKSC 13, [2010] 1 FLR 1813, that she had a solid basis for proceedings in the face of a foreign agreement. The agreement was full, fair and final. Given the grounds the wife now sought to establish the proper forum for doing so was the New Zealand court. The grounds relied upon had virtually no prospect of success in this jurisdiction. The wife was refused leave.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.
Neutral Citation Number: [2014] EWHC 925 (Fam)
Case No: FD13F00744

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 02/04/2014
Before :

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Between :


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Mr. Nicholas Allen (instructed by Mills & Reeve LLP) for the Applicant
Mr. Daniel Bentham (instructed by Hughes Fowler Carruthers) for the Respondent

Hearing dates: 28th February 2014
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr. Justice Coleridge:
[1] On 30th July 2013, Baker J gave permission to RM, the wife, to apply for financial provision pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 ["the 1984 Act"]. As provided for by the Rules, the respondent husband, RW, was not on notice in respect of the application. Accordingly, the leave was granted without notice. From here on I shall refer to the parties respectively as the wife and the husband although they were divorced finally in November 2010 in New Zealand.
[2] Leave having been granted without notice, the husband now applies to set it aside on notice and, as a makeweight to that application, that the wife's substantive application should be struck out. I do not think this further application adds anything to the issues in the end. I have now had the benefit of full written and oral submissions by both sides who are well represented by counsel.
[3] The husband seeks to set aside the leave granted on two main grounds. The first ground, which Mr Bentham concedes only occurred to him very late in the day and was only notified to the wife's legal team on the morning of the hearing, concerns this court's jurisdiction to hear the wife's claim at all. In a nutshell the husband contends that in the light of the "Maintenance Regulation" this court does not in fact have jurisdiction to entertain the wife's application for income provision. The second ground upon which the husband relies, the substantive ground, is that the leave granted should be set aside because Baker J was not given the full picture so far as the proceedings which had taken place in New Zealand is concerned, and that had he had the full picture, in the way I have, this application by the wife would be bound to fail and so should not be allowed to proceed any further now.
[4] The husband's essential argument is that this a classic "second bite of the cherry" case. His argument is that all the wife's claims at the time of the parties divorce were fully and fairly dealt with in New Zealand, entirely properly according to New Zealand practice and law and the wife, having spent the full share which she received at the time, should not now be able to come back in this jurisdiction and have another go. Mr Bentham argues that the filter process provided for under section 13 of the 1984 Act is precisely designed and targeted to filter out a case of this kind where proper provision has been made by a foreign court.
[5] The wife's simple response to the husband's application is that this court does have jurisdiction under the Maintenance Regulation, when properly analysed, and, in relation to the substantive ground relied on by the husband, she was not dealt with fairly in New Zealand and now finds herself in this country very short of financial resources.
The chronology
[6] The wife is 49 and the husband is 50. The parties were married on 11th September 1987 in Cheshire. There are three adult children, A who is 25, B who is 23 and C who is 20. All three children were born in England. Only C is still being educated, at University.
[7] At the time of the marriage the husband was an officer in the British Army. The parties made their home in England and overseas as and when the husband's military postings required him to do so. In 2001 a decision was taken by the family to move to New Zealand and they did so in September of that year having bought a home there in the June. The husband had not by that stage completed his final tour of duty in the Army. That occurred in April 2005 when he too went to make his home in New Zealand with the family.
[8] The parties separated in March 2008, so the marriage lasted in effect 20 years. During 2008 and 2009, the parties instructed solicitors in order to help them sort out their financial affairs. As a result of their negotiations, a written agreement was entered into on 5th June 2009. That agreement was drawn up into a document described as "Separation and Relationship Property Agreement". I shall turn to look at that in detail in a moment. Following the signing of the agreement a decree nisi was pronounced on 20th October 2010 and made final on 22nd November 2010. Very shortly after the divorce was pronounced, the wife returned to live in this country in December 2010. She has remained in this country ever since and regards herself as domiciled and habitually resident in this jurisdiction. Neither party has remarried although the husband lives with a new partner and has a young child. He has remained living in New Zealand.
[9] In March 2010, the wife applied in New Zealand to set aside the separation agreement on a number of conventional grounds. However, for reasons which are not fully explained, she withdrew that application in July 2013 and it has subsequently been dismissed. The wife applied in this jurisdiction under Part III of the Act on 30th July 2013 and it is the leave granted on that day by Baker J which is the focus of this application. The husband applied to set aside the leave granted on 8th November 2013.
The Separation and Relationship Property Agreement dated 5th June 2009
[10] This separation agreement was the culmination of negotiations partly between the parties direct and partly between their specialist lawyers instructed on each side. It is to be found in the bundle prepared for today's hearing at page 15. It is an agreement in a form specially recognised by New Zealand Statute; the Statute being the "The Property (Relationships) Act 1976" and in particular section 21A. It is four pages long and perfectly straightforward and simple to interpret and understand. Paragraph 1 sets out the background and records the basic features of the parties' relationship, marriage and children. Recital (d) under the heading Background reads: "The parties are the registered proprietors of ... the family home. The family home has been sold and settlement of the sale is to take place on the 5th June 2009". Recital (f) reads: "The parties have continued to run their finances together from separation through until the date of this agreement". Recital (g) reads: "RW has an entitlement to an Armed Forces Pension and a War Disablement Pension in the United Kingdom". Recital (h) reads: "The parties have reached agreement on differences between them relating to the property owned by either or both of them situated in both the United Kingdom and New Zealand and wish to record that agreement pursuant to section 21A of the Property (Relationships) Act 1976 (the Act).
[11] I shall not read out all the actual terms of the agreement but only highlight one or two of them.
[12] Paragraph 3 records that that wife will retain as her separate property the following:
"a. The net sale proceeds of the family home after payment of any debts secured over the family home (including any loans or other charges such as rates) and the costs of sale."
[13] Paragraph 4 records that the husband shall retain as his separate property the following:
"a. All his entitlement or interests in the Armed Forces Pension and War Disablement Pension in the United Kingdom;
b. Some 5 endowment policies, his share of the bank accounts and his entitlement to Z Co's New Zealand Superannuation. "
[14] Paragraphs 5, 6, 7, 8 and 9 record the distribution of the lesser assets and debts in the case. Paragraph 11 records that, and I quote, "all other items of relationship property which either party may have in their respective possession or control, shall be their respective separate property".
[15] Paragraph 12 of the agreement covers maintenance, it reads as follows:
"RW has fully maintained RM (and their children) since separation to the date of this agreement. RM agrees RW has no liability now or in the future to pay spousal maintenance to her. The terms of this agreement have been entered into having regard to RM's ability to support herself now and in the future and this agreement is in full settlement of any claim she might have now or in the future to spousal maintenance under section 63 or 64 of the Family Proceedings Act 1980."
[16] Paragraph 13 of the agreement covers school fees and child support and reads:
"RW and RM agree that RW shall pay C's school fees at C College (including both tuition and boarding - if C continues as a boarder) until he concludes his education there. In consideration for this payment (which exceeds the amount which RW would be assessed to pay as child support), RW will have no liability to pay child support to RM and accordingly she agrees not to apply to have RW assessed to pay child support. In the event that RW is assessed by the Child Support Agency as being liable to pay child support then he shall not be liable to pay the school fees pursuant to this clause."
[17] Those financial provisions covered all the parties' finances at the time.
[18] Paragraph 14, the last paragraph of the agreement, is of crucial importance in the light of the complaints which the wife now makes. I shall read it in to this judgment in full:
"14.1 It is acknowledged by RW and RM that each of them has fully disclosed to the other all their respective interests in relationship and separate property and that this agreement only covers property disclosed to each at the time this agreement was signed.
14.2 Each party undertakes to immediately do all things and sign all documents that are necessary to implement the terms of this agreement.
14.3 Each party shall meet their own costs of and incidental to this agreement and to the implementation of its terms.
14.4 RW and RM acknowledge that before signing this agreement they each received independent legal advice as to the effects and implications of the agreement and its terms.
14.5 The provisions of this agreement are binding on the parties in all circumstances including the death of one of the parties.
14.6 The provisions of this agreement (subject to clause 14.1 above) are in full and final settlement of all questions concerning all of the relationship or separate property owned by RW and RM or both of them and from the date of this agreement neither of them shall have any claim against the other relating to such property whether under the Property (Relationships) Act 1976 or under any other statute or at common law."
[19] The agreement was then signed by both parties and independently witnessed by a solicitor. Each of the witnesses signed a certificate in this form:
"I [Name of Solicitor] of Christchurch, solicitor and witness to the above signature, certify that before [name of party] signed this agreement, I explained to [him/her] its effect and implication in terms of the Property (Relationships) Act 1976."
[20] It is the husband's case that this carefully drawn agreement entered into with the benefit of legal advice on both sides fully and finally concluded the financial obligations one to the other on the divorce of the parties.
[21] For the purposes of the hearing before me, further evidence was obtained from the husband's New Zealand barrister, Stephanie Marsden. She wrote to the husband's English instructing solicitor by a letter dated 8th January 2014. It is a letter of crucial importance and its contents, in so far as it gives legal advice on New Zealand law, is not the subject of challenge. I shall read some the paragraphs:
"1. I represented RW in New Zealand in matters arising from his separation from his former wife, RM including:
a) an agreement dated 5 June 2009 pursuant to s 21A Property (Relationships) Act 1976 settling relationship property, and spousal maintenance and child maintenance issues ("the 2009 Agreement"); and
b) a subsequent application to the New Zealand Family Court by RM to set aside that agreement.
2. The 2009 agreement recorded that the parties had elected New Zealand jurisdiction in respect of all of their property.
3. You have asked me to describe the effect of the 2009 Agreement in New Zealand law. In New Zealand, the law concerning property owned by spouses and de facto partners is covered by the Property (Relationships) Act 1976 ("the Act"). The Act is a code (it overrides common law and equitable principles and other legislation).
4. Amongst other things, the Act sets out how property should be divided between spouses on separation and the mechanisms for resolution of disputes concerning that property. The Act provides that such disputes can be resolved either by Court order or by written agreements which are entered into with the benefit of independent advice, and where the lawyer witnessing the agreement certifies that he or she has explained the effect and implications of the agreement to their client (s 21A and s 21F).
5. Where an agreement has been entered into and the requirements of s 21F of the Act have been met, there is a final and binding settlement under New Zealand law. There is no requirement that it be converted into a Court Order to take full and final effect. The agreement can be enforced by an application for specific performance if it is breached. [emphasis added by Coleridge J]
6. In practice relationship property, spousal maintenance and other matters arising on separation, are usually resolved by agreement, rather than by Court Order. In fact, even where proceedings are commenced in court and the parties reach agreement before judgement, it is often the case that the understandings reached will be recorded in an agreement under s 21A of the Act and the proceedings discontinued, rather than consent orders being made. This tendency to use agreements under s 21A reflects the principle in s 1N(d) of the Act that questions arising under the Act about relationship property should be resolved as inexpensively, simply, and speedily as is consistent with justice. This means that applications to Court tend to be made as the exception and only as a last resort to move matters along, obtain proper disclosure or determine issues on which there is no agreement.
7. There is provision under s 21J of the Act to set aside an agreement in cases of serious injustice. It is very hard to meet the threshold to set aside an agreement if proper advice has been given, disclosure made and proper expert evidence (for example as to value) has been obtained.
8. There is a body of case law that sets out the duties of the lawyers advising the parties on the effects of the agreement. Lawyers take their obligations as to advice seriously because of the liability issues for them personally. That liability is far reaching, for example Lawyers for one party have been successfully sued by the other party to an agreement (not their client) where an agreement has been set aside because of the inadequacy of advice by that Lawyer to their own client.
9. RM withdrew her application to set aside the agreement in the New Zealand Court. I have no doubt that was because there was no basis on which she could have had it set aside.
10. RM had a competent and very experienced counsel, Mr Logan, in New Zealand on the setting aside application. I do not doubt that he will be able to confirm to RM's UK Lawyer that my summary of the law in New Zealand as set out in paragraphs 3 to 8 above is correct."
[22] In short, everything that could be done in New Zealand to ensure that this was a full, final and binding agreement in every sense was done. Both sides acknowledged that they had full disclosure and the benefit of proper legal advice.
[23] As I have recorded, the wife applied in New Zealand to set aside the agreement, but, seemingly upon advice, did not pursue that application to conclusion.
The hearing in front of Baker J
[24] The hearing in front of Baker J took place on 30th July 2013 and was quite properly not upon notice to the husband. The learned judge had before him the wife's application and a skeleton argument prepared by Mr Allen who acts for the wife at this stage. I have a note in the papers at page D8 of the hearing. It was plainly quite short and I fully accept that it is not a verbatim note of all that was said. However, there is a passage at the foot of page D8 where Baker J asked the following:
"Baker J: The separation agreement compromised the wife's claims?
Mr Allen: It is not conclusive if Edgar criteria are raised. There is no reported authority on separation agreements. Section 18 of the 1984 Act refers back to section 25 criteria. On the substantive Part III application there will be reference to the agreements."
And then there is a discussion as to the basis upon which an agreement might be set aside and also as to the scope of any order which the wife might receive in this country.
[25] The note of Baker J's judgment reads as follows:
"I grant the application. This is an application for leave to apply for a financial order under Part III of the Matrimonial Proceedings Act 1984 made ex parte under the rules as endorsed by the Court of Appeal in Traversa -v- Freddi.
The brief background is this. The wife is aged 48 and the husband aged 50. They married in England in 1987 and have three children, aged 25, 22 and the youngest, C, is aged 19. All three children were born in England. The husband is British. In 2001 they move to New Zealand and separated in 2008 and divorced on the husband's petition in 2010. In 2009 they entered into a 'separation and relationship property agreement'.
Mr Allen indicates that the agreement was not submitted to the Court for approval. Although she received legal advice the wife asserts that she entered the agreement under pressure from the husband. There is no evidence of this at present other than what she has asserted through Counsel today. [emphasis added by Coleridge J]
The wife returned to the UK with the child. She has suffered from a series of misfortunes including suffering from leukaemia and this affects her capacity to work. Now she does not work, she lives with her parents for whom she is a part-time carer and for C when he is not at university.
The husband is in New Zealand in employment earning £66,000 pa.
The wife seeks the following order under Part III:
1. In relation to the pension. The husband has an army pension that has been significantly undervalued in the agreement under New Zealand law. The valuation cash equivalent would give a value very significantly greater than the value taken into account in New Zealand. The precise figures are a value of c. £210,000 under the New Zealand agreement whereas in England the cash equivalent would be c. £500,000. This is in the context of a total pot equivalent to c. £500,000/£600,000. The different treatment in the two jurisdictions represents a significant discrepancy.
2. The wife seeks spousal maintenance.
3. The wife seeks maintenance for C.
4. The wife seeks further educational expenses for C.
Mr Allen submits that the settlement in New Zealand is significantly lower than that she would have received from the English Court.
In order to bring a claim:
(1) There must be jurisdiction under s15. I am satisfied that she is habitually resident in England and Wales and that it is also her domicile of origin and therefore there is jurisdiction.
(2) I must be satisfied that there is a "substantial ground",. Section 13 was considered in Agbaje. I have in mind what Lord Collins said in the report at paragraphs 33 and 70/72. According to paragraph 33 "substantial" means "solid".
I have also been referred to the Court of Appeal decision in Traversa -v- Freddi which followed Agbaje. However, Mr Allen has been unable to cite a case under Part III involving a prior separation agreement in a foreign jurisdiction. Mr Allen sought to draw an analogy with Traversa -v- Freddi where the division of property was in accordance with a matrimonial property regime and on marriage the parties had elected a ‘separate property' regime. Whether or not this is valid - having regard to Radmacher is debateable.
I also take into account the wife's arguments that she only entered the agreement under pressure.
In conclusion, though not without some hesitation, I am satisfied on the four bases that the wife seeks to make a claim under Part III and that this is a solid case but this does not necessarily mean that she will ultimately satisfy a court that she has grounds for further financial relief.
I therefore grant leave to make the application."
[26] Of crucial importance, says counsel for the husband today, is the statement in the Baker J's judgment indicating that "the agreement was not submitted to the court for approval". It also records that at the time of the application to Baker J there was no evidence of undue pressure before the court in any shape or form.
The husband's case
[27] Mr Bentham complains loudly and strongly on the husband's behalf that this attempt by the wife to launch a second full scale application for financial provision (for such it would in effect be) is to entirely ignore the full and final nature of the New Zealand agreement. He says there is simply no justification for the wife to be able to go behind the written agreement which was fully compliant with New Zealand divorce law and practice. He summarises his case at the foot of his written argument in this way:
i) The parties reached an agreement in New Zealand which has the same status and effect as a consent order.
ii) The status of the agreement was not properly disclosed to Baker J at the without notice hearing.
iii) The agreement was in full and final settlement of all financial claims.
iv) It is not right for Part III to be used for a second bite of the cherry when the case was resolved consensually in a comparable jurisdiction such as New Zealand.
v) The wife could have sought to re-open the case in New Zealand but ultimately withdrew her application to do so. She is forum shopping.
vi) The husband's pensions were not undervalued. They were valued in accordance with the principles used in New Zealand.
vii) The agreement divided the assets more or less equally save that the wife had complete liquidity and the husband effectively had only his pensions.
viii) The wife received enough capital to purchase a home and an investment property and she had an earning capacity.
ix) It was the wife's choice to move to England and to spend her capital. The consequences of that choice cannot be visited on the husband.
x) The husband has complied with all his child support obligations.
xi) The wife's allegations of duress and non-disclosure are obviously misconceived and lightweight.
xii) The wife did not start proceedings in England until four years after the clean break.
xiii) There is almost no money in the case.
xiv) The costs and court time that would be expended on the litigation are disproportionate.
[28] I do no justice to Mr Bentham's careful and full submissions but his summary at the conclusion is accurate and, it seems to me, powerful.
[29] As I indicated, apart from Mr Bentham's response to the substantive application he also takes the preliminary point that this court should not proceed because it anyhow has no jurisdiction to do so. In that regard he draws attention to the Maintenance Regulation which governs the jurisdiction of the English court, regardless of whether any other relevant jurisdiction is an EU Member State, or if no other jurisdiction is involved. The Maintenance Regulation becomes relevant because of Section 15(1A) MFPA 1984.
[30] Pursuant to Article 3 of the Maintenance Regulation the court has jurisdiction in three particular circumstances. Firstly, that the defendant is habitually resident in this country (he is plainly not). Secondly, that the maintenance creditor is habitually resident here. Mr Bentham contends that the wife is not a creditor. And thirdly, if the court has jurisdiction to entertain proceedings relating to the status of a person and the issue of maintenance is ancillary to those proceedings. It is conceded that the court does not have jurisdiction to entertain proceedings relating to status because the divorce, as is plain, was dealt with in New Zealand.
[31] Mr Bentham therefore contends that the only basis upon which the wife in this case can bring herself within the Regulation is if she is a "creditor" and that, in this instance, she is not such an individual as no maintenance award has actually been made. He develops his argument fully in an addendum written submission which was lodged with the court following upon the conclusion of the oral hearing.
[32] The essence of this point turns upon the construction of the term "creditor". A creditor, says Mr Bentham, is not a mere applicant. Mr Bentham goes on to suggest that in any event the wife in the particular circumstances of Part III is not even an applicant for maintenance (let alone a creditor) unless and until she is given permission to bring a claim which, of course, is the very thing that is in issue in this application. So, says Mr Bentham, the application need proceed no further and should be struck out for want of jurisdiction.
The wife's case
[33] Mr Allen, on behalf of the wife, is faced now with a slightly different evidential situation to that which existed at the time of his application to Baker J on 30 July. In the first place he has the benefit of the unchallenged legal opinion from the New Zealand barrister Stephanie Marsden. That document puts beyond doubt what the efficacy of the 9 June 2009 agreement was and is. Mr Allen is therefore driven to fall back on the more conventional grounds for undermining an agreement, being non-disclosure, undue pressure and lack of proper valuation. He says in his careful written argument that the wife settled on unfavourable terms because the pensions were valued in a way which was unfavourable to her and undervalued them by English standards. He also maintains that there were features of the disclosure process which meant she was not fully in the picture. Finally he says that the wife felt under particular pressure at the time when the agreement was concluded.
[34] In relation to the jurisdiction argument Mr Allen refers me especially to the case of Farrell v Long [1998] 1 FLR 559 as authority for the clear proposition that a maintenance creditor includes a person in the position of the wife in this case, namely someone who is applying for maintenance including a person bringing a maintenance action for the first time. He concludes this part of his argument in this way:
"In summary "creditor" must be interpreted (as the ECJ has previously decided) as including a "prospective creditor, claimant, or applicant". To do otherwise would emasculate the very purpose of the Maintenance Regulation. The wife falls within the definition and the English court therefore has maintenance jurisdiction."
[35] At the end of the day, therefore, the wife asserts overall that the court not only has jurisdiction but should exercise it in her favour to relieve her of the obviously stringent financial circumstances in which she now finds herself.
[36] Mr Allen says that the husband's attempts to stop this application going forward at this stage is wrong and that the agreement point does not constitute a knock out blow which is the test provided for in Agbaje before leave already granted is set aside. Mr Allen contends that the proper place to make these arguments is at a full hearing after full and proper disclosure and that it is the wife's right, as a resident of this country, to have her claims properly assessed.
The Law
[37] The law in relation to applications under the MFPA 1984 Part III is now well and truly described by the case of Agbaje in the Supreme Court. In that case Lord Collins set out extensively the proper approach to these cases in general and preliminary applications of this kind in particular. He indicated that the court should be slow to allow extended debates at the leave stage and should only prevent applications going forward if the parties seeking to set aside the leave could deliver a "knock out blow". He did, however, at paragraph 72 provide general guidance as to the purpose of Part III. He said this:
"It is not the purpose of Part III to allow a spouse (usually, in current conditions, the wife) with some English connections to make an application in England to take advantage of what may well be the more generous approach in England to financial provision, particularly in so-called big-money cases. There is no condition of exceptionality for the purposes of s 16, but it will not usually be a case for an order under Part III where the wife had a right to apply for financial relief under the foreign law, and an award was made in the foreign country. In such cases mere disparity between that award and what would be awarded on an English divorce will certainly be insufficient to trigger the application of Part III. Nor is hardship or injustice (much less serious injustice) a condition of the exercise of the jurisdiction, but if either factor is present, it may make it appropriate, in light of all the circumstances, for an order to be made, and may affect the nature of the provision ordered. Of course, the court will not lightly characterise foreign law, or the order of a foreign court, as unjust."
[38] I have carefully considered all the evidence and arguments, written and oral, which have been advanced so well on both sides and these are the conclusions which I have finally arrived at.
Findings and Conclusions
[39] Dealing first with the jurisdiction point; I can cover that shortly. I agree with Mr Allen's interpretation of the meaning of creditor in the context of Article 3 of the Maintenance Regulation. The term "creditor" is of course generally to be found where a debt is already in existence. However, I think a proper reading of the Article, particularly against the background of the case of Farrell v Long drives me to the conclusion that a maintenance creditor is someone who is an applicant in the sense of a potential creditor. I consider that the Regulation makes little sense unless that is the proper interpretation. Accordingly I find that the court does have jurisdiction to hear this claim.
[40] Ordinarily speaking as Lord Collins has emphasised in Agbaje, applications to set aside leave should be few and far between; confined to a position where there is a discrete preliminary point potentially capable of being a "knock out blow". However, I have no doubt there are indeed occasionally cases where the existence of a clear preliminary point makes it desirable that such a point should be considered at the leave stage and before the prolonged and expensive disclosure process has been put in train, and therefore to prevent the unnecessary expenditure of costs. I find that this is most certainly a case where the existence of this preliminary point properly merits a discrete hearing.
[41] I am satisfied, and indeed find, that Baker J was not aware of (or possibly misunderstood) the true effect of the New Zealand agreement. He did not appreciate that the effect of the agreement finally concluded the proceedings in a way in which ordinarily in this country a consent order would be employed. There is no reference to the full efficacy of the agreement in the wife's skeleton put before him. There is no reference to it in the note of the proceedings and there is no reference to it in the note of the judgment. Indeed, on the contrary the judge seems to have been under the impression that the approval of the court was required.
[42] Given that Baker J was, for whatever reason, not apprised of the full significance of the agreement, in accordance with ordinary principles concerning the setting aside of full orders made on incomplete material and without notice, this order must be set aside for that reason alone and accordingly I do so. Having set it aside I turn now to reconsider the whole question of leave de novo but having the very great advantage of being presented with full argument from both parties.
[43] Accordingly, it seems to me, the onus must remain on the wife to establish, in accordance with the principles of Agbaje, that she has a solid basis for proceeding in the face of the foreign agreement which has the same effect as a final order. In the end I think the issue comes down to a simple one, which can be expressed in this way; does the New Zealand agreement make any prospect of the wife succeeding so remote as to be insufficient to justify leave being granted? Is Part III of the MFPA to be allowed to be used in these very clear even stark circumstances?
[44] The New Zealand agreement was as full and fair and final as it was possible to provide for in New Zealand. Both sides had full legal advice and, as acknowledged at the foot of the agreement, both had the agreement fully explained to them at the time of the signing. The agreement was in effect a notarised one.
[45] Given the grounds upon which the wife now seeks to challenge the agreement, the proper forum must surely be New Zealand. The New Zealand Act itself contemplates such set aside applications on precisely these grounds. However, the wife, having commenced such proceedings, has chosen not to proceed with them. It is not for this court to speculate as to the reasons for her withdrawal of those proceedings. Presumably she does not think she has much prospect of success in that jurisdiction.
[46] The three bases upon which she proceeds here seem to me very lacking in merit. She complains about the methodology for the calculation of the value of the pensions. However, the evidence is clear that the methodology employed was the methodology always employed in the New Zealand court and cases. The calculation of the actuarial value of pensions is at best a black art. The fact that one jurisdiction employs one methodology and another, another surely does not found a basis for re-opening the calculation in the more favourable jurisdiction.
[47] The wife's second ground, that she was under pressure is, it seems to me, not established when I look at the correspondence in the papers. If anyone was pressing to conclude matters it was the wife via her own lawyers.
[48] Finally the points made about non-disclosure again seem to me to be virtually unarguable, given the clear terms of paragraph 14.1 of the June 2009 agreement and the fact that she was fully represented at all times by competent specialist lawyers.
[49] Set against the undisputed chronology leading to the execution of this agreement and its clear terms, it seems to me those three grounds have virtually no prospect at all of success. They certainly do not, in my judgment, amount to a "solid" ground for proceeding. They are very shaky grounds either separately or taken together.
[50] Accordingly the wife is forced back on to the simple point that she is now in straitened financial circumstances. It is at this point that she has to confront head on the "second bite of the cherry" argument. However much sympathy I have with the wife, to allow her to proceed in these circumstances would put her in a very much better position than an English wife in comparable circumstances. If a final order had been made in this jurisdiction along the lines of the order made in New Zealand, it would be incapable of being undermined, absent Barder type factors, simply because a wife had spent her share and needed more.
[51] Having considered the competing arguments carefully I find myself unable to see, as a matter of fairness, how it can possibly be justified or right to allow this wife to launch now a second full scale enquiry into the husband's circumstances with a view to extracting further funds from him and with all the attendant costs.
[52] I have not dealt specifically with the question of delay and Mr Bentham, on behalf of the husband, complains strongly about it. I agree with him that there is much force in that point too but at the end of the day it is the clear terms of the written agreement entered into in New Zealand fully in accordance with that jurisdiction's law which I find to be determinative of this application for leave at this stage. It is indeed a knock out blow.
[53] Accordingly I shall refuse leave in this case.
[54] Part III of the Matrimonial and Family Proceedings Act 1984 is a precious resource available to the court and, as Lord Collins has emphasised, there is in the statute very little restriction on its use providing that applicants can bring themselves within Section 13 of the Act. However, given the generous width of the court's jurisdiction and powers, care must be taken by courts to ensure that it is not allowed to be used to pressurise respondents into making offers of further provision in circumstances where matters have been properly and fully concluded in another jurisdiction, and merely to avoid being subjected again to the full rigours of the post divorce process, this time in England.