(Court of Appeal, Black, McFarlane and Sales LJJ, 12 November 2015)
Financial remedies – Maintenance Regulation – Proceedings in Slovenia where wife had withdrawn application for spousal maintenance – Leave granted for her to apply for financial remedy in the English court on the basis of habitual residence – Appeal – Whether there had been a decision in SloveniaThe husband’s appeal from a decision that there had been no decision on the wife’s application for spousal maintenance by the Slovenian court for the purposes of the Maintenance Regulation was dismissed.
The husband and wife were born in Kosovo but lived in Slovenia during the marriage. in 2008 the wife and four children moved to England. She subsequently issued divorce proceedings in Slovenia and sought maintenance for the two younger children. She made a further application for spousal maintenance.
In 2010 the Slovenian court recorded that the wife had revoked her claim for payment of monthly maintenance and that the husband agreed to that revocation. In 2011 the marriage was dissolved and the order recorded the withdrawal of the claim for maintenance.
The wife was thereafter given leave to apply for financial remedy under the Matrimonial and Family Proceedings Act 1984. The husband applied to set aside or strike out the grant of leave or sought an adjournment and a stay. He claimed that the issue had been determined in Slovenia and that that determination was entitled to recognition under the Maintenance Regulation.
The husband's applications were refused. The judge found that there were no pending proceedings in Slovenia and that the previous proceedings had been stopped: there had been no decision within the meaning of Art 2(1) of the Maintenance Regulation. He further held that the court in England and Wales had jurisdiction since the wife had been habitually resident here since her application was made. The husband appealed.
The appeal was dismissed. Although there could be other means by which it was possible for there to be a decision by a court, a process of adjudication or determination was normally characteristic of a court making a decision. The facts of the present case fell far short of establishing that the Slovenian court had made a decision or that there had been a court settlement on the issue of spousal maintenance. The decision had been one made by the wife to withdraw her claim to spousal maintenance and did not amount to a decision for the purposes of Art 2(1)(i).
In the absence of any evidence whatsoever that there had been a settlement between the husband and wife on the issue of his maintenance obligations to her, the record fell well short of establishing that it had been a court settlement as defined by Art 2(1)(ii) of the Maintenance Regulation.
Case No: B6/2014/4251Neutral Citation Number:  EWCA Civ 1138IN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM HIGH COURT OF JUSTICEFAMILY DIVISIONMr Justice MoylanFD13F00568Royal Courts of JusticeStrandLondonWC2A 2LLDate: 12/11/2015
LADY JUSTICE BLACK
LORD JUSTICE McFARLANE
LORD JUSTICE SALES
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Mr Tim Scott QC (instructed by Withers LLP) for the Appellant
Mr Charles Hale QC and Mr Henry Clayton (instructed by Healys LLP) for the Respondent
Hearing date: 29 October 2015
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Lord Justice McFarlane :
The present appeal requires this court to consider, apparently for the first time, the jurisdiction of a court in England and Wales to entertain an application for spousal maintenance in the context of Council Regulation (EC) 4/2009 (“The Maintenance Regulation”) following previous proceedings in another EU member state.
The appeal comes, following grant of permission to appeal by Vos LJ on 11 February 2015, from a decision of Mr Justice Moylan made on 4th November 2014 following a two day hearing. Moylan J’s judgment is reported as AA v BB
 EWHC 4210 (Fam).
The proceedings relate to a couple who were both born in Kosovo but who lived for much of their married life in Slovenia. They married in 1981 and had four children, all of whom are now over the age of 20 years. In May 2008 the wife and four children moved to live in England and Wales, a state of affairs which has continued, at least so far as the wife is concerned, since that time. One month later the wife commenced divorce proceedings in Slovenia and an order dissolving their marriage was eventually made on 8th November 2011 by the Slovenian court. 
By an order of Eleanor King J (as she then was) made on 3rd October 2013 the wife was given leave to apply for financial remedy orders under Matrimonial and Family Proceedings Act 1984, (“the MFPA 1984”), Part III (“Part III proceedings”). In accordance with the rules, that application was made without notice to the husband.
At the hearing before Moylan J in November 2014, the court heard applications by the husband to set aside and/or strike out the leave to commence Part III proceedings granted by Eleanor King J. Alternatively the husband sought an adjournment and a stay of Eleanor King J’s orders. At the conclusion of an immaculately crafted and fully reasoned judgment, Moylan J refused the husband’s various applications in their entirety.
The husband’s case before Moylan J was to achieve a root and branch “knockout blow” to prevent the wife prosecuting any claims for financial relief in this jurisdiction. In the present appeal the husband is more modest in his aims and does not seek to challenge Moylan J’s overall conclusion; his case is solely focussed upon that part of the wife’s claim in England and Wales which relates to spousal maintenance.The Maintenance Regulation
Before turning to the detail of this case, it is necessary to set out the relevant parts of the Maintenance Regulation and of the MFPA 1984, Part III.
The Maintenance Regulation came into force in the United Kingdom on 18th June 2011. During the hearing before Moylan J, the parties’ submissions were focussed on that Regulation. In his judgment (para 8), he commented that, because the proceedings in Slovenia were commenced prior to 18th June 2011, the relevant regulation was in fact, “in part”, ‘Brussels I (Council Regulation (EC) 44/2201). As he was not aware of any material differences between the relevant provisions of the two instruments, Moylan J found it convenient to follow the format of the parties’ submissions and refer to the provisions of the Maintenance Regulation. I propose to adopt the same approach.
The Maintenance Regulation uses the term “maintenance creditor” to mean “any individual to whom maintenance is owed or is alleged to be owed” and “maintenance debtor” to mean “any individual who owes or is alleged to owe maintenance” [Maintenance Regulation, Articles 2.1.9 and 10].
The following recitals to the regulation are potentially relevant:
“(9) A maintenance creditor should be able to obtain easily, in a Member State, a decision which will be automatically enforceable in another Member State without further formalities
(11) The scope of this Regulation should cover all maintenance obligations arising from a family relationship, parentage, marriage or affinity, in order to guarantee equal treatment of all maintenance creditors. For the purposes of this Regulation, the term ‘maintenance obligation’ should be interpreted autonomously
(13) For the reasons set out above, this Regulation should also ensure the recognition and enforcement of court settlements and authentic instruments without affecting the right of either party to such a settlement or instrument to challenge the settlement or instrument before the courts of the Member State of origin.
(15) In order to preserve the interests of maintenance creditors and to promote the proper administration of justice within the European Union, the rules on jurisdiction as they result from Regulation (EC) No 44/2001 should be adapted. The circumstance that the defendant is habitually resident in a third State should no longer entail the non-application of Community rules on jurisdiction, and there should no longer be any referral to national law. This Regulation should therefore determine the cases in which a court in a Member State may exercise subsidiary jurisdiction.
(25) Recognition in a Member State of a decision relating to maintenance obligations has as its only object to allow the recovery of the maintenance claim determined in the decision. It does not imply the recognition by that Member State of the family relationship, parentage, marriage or affinity underlying the maintenance obligations which gave rise to the decision.”
Pausing there, each of the recitals that I have now set out are relied upon by the wife in the present appeal to establish the overall purpose of the Maintenance Regulation which her leading counsel, Mr Charles Hale QC, submits is entirely focussed upon supporting and assisting a maintenance creditor (in this case the wife) in achieving cross-border enforcement of maintenance obligations against a maintenance debtor (the husband). In addition, the husband’s leading counsel, Mr Timothy Scott QC, relies upon two of those recitals (recitals (11) and (13)) to establish that the Regulation covers “all maintenance obligations” and includes provision for the “recognition and enforcement of court settlements”.
The relevant Articles within the regulation itself are as follows:
“Article 2: Definitions 1.
For the purposes of this Regulation:
i) the term “decision” shall mean a decision in matters relating to maintenance obligations given by a court of a Member State, whatever the decision may be called, including a decree, order, judgment, or writ of execution, as well as a decision by an officer of the court determining the costs or expenses…..;
ii) the term “court settlement” shall mean a settlement in matters relating to maintenance obligations which has been approved by a court or concluded before a court in the course of proceedings;”
Chapter II: Jurisdiction
Article 3: General Provisions
In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:
(a) the court for the place where the defendant is habitually resident, or
(b) the court for the place where the creditor is habitually resident, or
Chapter IV of the Maintenance Regulation relates to “Recognition, enforceability and enforcement of decisions”. Chapter IV, section 1 relates to “decisions given in a member state bound by the 2007 Hague Protocol” (the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance). Slovenia is a member state bound by the 2007 Hague Protocol. The decision in focus in the present appeal was given in Slovenia and therefore the provisions of Chapter IV section 1 apply. The United Kingdom is not bound by the 2007 Hague Protocol, consequently, if the tables had been turned and the focus was on a decision of the court in England and Wales, Maintenance Regulation, Chapter IV section 2 would apply.
The engine room of Chapter IV, section 1 is contained in Article 17 which provides:
“(1) A decision given in a Member State bound by the 2007 Hague Protocol shall be recognised in another Member State without any special procedure being required and without any possibility of opposing its recognition.
(2) A decision given in a Member State bound by the 2007 Hague Protocol which is enforceable in the State shall be enforceable in another Member State without the need for a declaration of enforceability.”
Maintenance Regulation Chapter IV, section 3 sets out a number of “common provisions” which apply whether or not the member state has adopted the Hague Protocol. In the context of this appeal Article 42, within Chapter IV, section 3, is of importance:
“Article 42: No review as to substanceUnder no circumstances may a decision given in a Member State be reviewed as to its substance in the Member State in which recognition, enforceability or enforcement is sought.”
Finally, it is necessary to refer to Article 48 which relates to “Court Settlements and Authentic Instruments” and states:
“Article 48: Application of this Regulation to court settlement and authentic instruments
(1) Court settlements and authentic instruments which are enforceable in the Member State of origin shall be recognised in another Member State and be enforceable there in the same way as decisions, in accordance with Chapter IV.
(2) The provisions of this Regulation shall apply as necessary to court settlements and authentic instruments.”Matrimonial and Family Proceedings Act l984: Part III17.
The jurisdiction of a court in England and Wales to entertain a Part III application for financial relief following an overseas divorce is contained within the MFPA 1984, s 15 (1) and (1A) as follows:
“15 Jurisdiction of the court.
(1) Subject to subsections 1(A) and (2) below,the court shall have jurisdiction to entertain an application for an order for financial relief if any of the following jurisdictional requirements are satisfied, that is to say—
(a) either of the parties to the marriage was domiciled in England and Wales on the date of the application for leave under section 13 above or was so domiciled on the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or
(b) either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or was so resident throughout the period of one year ending with the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or
(c) either or both of the parties to the marriage had at the date of the application for leave a beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.
(1A) If an application or part of an application relates to a matter where jurisdiction fails to be determined by reference to the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, those requirements are to determine whether the court has jurisdiction to entertain the application or that part of it.”Slovenian proceedings
On 20th June 2008 the wife began divorce proceedings in Slovenia and, amongst other matters, sought maintenance for the two younger children. On 9th October 2009 she made a further application to include a claim for maintenance for herself within the divorce proceedings.
On 24th September 2010 an important hearing took place before the Slovenian Court. The details of this hearing were not referred to as part of the written submissions for either party to this appeal, and the translation of the resulting Slovenian court order for that date was not part of the appeal bundle. We have now seen that document. Under an overall heading of “Decision” the following text appears:
“The main hearing shall be held and shall be closed to the public.The judge attempts to reach a peaceful settlement of the matter, in consideration of the application made by the plaintiff dated 16/7/2010 which the judge examines and reads. The judge specifically asks the defendant if he agrees with the divorce which he confirms.It is again found that the custody of the minor D to be protected and raised by the plaintiff is not a matter of dispute between the parties.The plaintiff fully revokes the claim for payment of monthly maintenance of €12,000 and the defendant states his agreement to the revoking.”
There then follows a short account of the arrangements for contact between the husband and the children. The document concludes with a note that the parties agree not to continue with the hearing on that day and propose setting the date for another hearing in early December 2010. The only entry under the heading “Order” is in these terms:
“The new hearing shall be scheduled for 2 December 2010 at 9 a.m. in Room 505.”
The next significant hearing was on 8th November 2011 before the Ljubljana District Court, in the Republic of Slovenia. The court record, which has been translated into English, records the outcome of the proceedings which concluded on that date and states that: “Ljubljana District Court, namely the District Judge Maja Rozman, on the same day DECIDED:”In the court document the word “Decided” is at the start of a second page and as well as being in capitals and bold is in an altogether bigger font. Beneath the heading “Decided” the document sets out some seven clauses. Clause I is the most relevant to this appeal, it states:“I. Due to the partial withdrawal of the complaint, the proceeding regarding the following claim for maintenance has been stopped:”After the word “stopped” the following text appears in quotation marks:‘The defendant [husband] is obligated to pay monthly maintenance for [second youngest child] as of 15th June 2008 in the amount of 3,500 EUR as well as monthly maintenance for the claimant [wife] in the amount of 12,000 EUR; all of these amounts shall be paid into the bank account of the Claimant [bank details]; amounts due prior to the finality of the judgment shall be paid within 15 days, and all future amounts due shall be paid by the 15th day of the month for the current month; in the event of a delay, statutory default interest shall be paid as of the day of the delay until the date of payment.’
Paragraph II pronounces the dissolution of the marriage. Paragraph III provides that the youngest child, D, shall reside with the wife. Paragraph IV establishes the regime for contact. Paragraph V sets out the maintenance obligation upon the husband relating to the youngest child, D. Paragraph VI states “all remaining requests made by the Claimant (i.e. no-contact order with regard to the child and the amount of the maintenance that exceeds the awarded amount and the requested 8,000 EUR) shall be rejected.” Finally, paragraph VII provides that each party shall pay their own costs.
There then follows an extensive “Explanatory Note” setting out in more detail the procedural chronology. So far as matters of maintenance are concerned the following text appears (any underlining, bold or other emphasis appears in the original):“The claims for the payment of maintenance to her daughter T, who is of age, and for the payment of maintenance to her were later withdrawn (motion dated 9th Oct 20009, document no. 19, and the minutes of the trial dated 24th Sept 2010, document no. 64). The defendant has not made any statements regarding the withdrawal of the claim for the payment of maintenance to his daughter T, who is of age, within 15 days following the receipt of the notification of such withdrawal but showed express agreement with the withdrawal of the claim for the payment of maintenance to the claimant at the hearing on 24th Sept 2010; for this reason the court stopped the proceedings with regard to these two claims (Article 188, Paragraph 3 of the Slovene Civil Procedure Act, hereinafter: ZPP – item 1 of the operative part of this decision).Thus, the subject of the hearings in this case are the following claims:the dissolution of the marriage between the litigating parties;the granting of a residence order regarding the minor daughter D to her mother;the granting of a maintenance order to the defendant to pay a monthly amount of 8,000.00 EUR for the minor daughter, and the granting of a no-contact order to the defendant.”
In order not to mislead, I should explain that the proceedings in Slovenia have been extensive and on other occasions the Slovenian court has made orders with respect to other matters which are not relevant to the claim for spousal maintenance. The hearing before Moylan J
The two day hearing before Moylan J was conducted on the basis of the written evidence, including statements from the parties and the submissions of leading counsel, Mr Philip Marshall QC, who then appeared for the husband, and Mr Charles Hale QC, who appeared for the wife at first instance as he does before this court.
The judge’s judgment summarises Mr Marshall’s submissions in some detail. As I have already indicated, the husband’s case was cast more widely in the hope of knocking out, or at least establishing a stay of, the totality of the wife’s claims. Mr Marshall therefore sought to argue matters on the basis of Articles 12 and 13 of the Maintenance Regulation which relate to “Lis Pendens” and “Related actions”. That line of argument is not relied upon at all by Mr Scott in presenting the husband’s appeal and it is not therefore necessary to refer to those matters in this judgment.
Within his overall submissions, as recorded by the judge, the husband’s case with regard to spousal maintenance was on the basis that
“the issue of spousal maintenance has been determined in Slovenia in that the wife’s claim was stopped. This determination is entitled to recognition under the Maintenance Regulation.”
Moylan J records his decision with respect to spousal maintenance in short but crystal clear terms at paragraphs 50 and 51 of his judgment:
“50. As for the claim for spousal maintenance, it is clear to me that there are no proceedings concerning spousal maintenance pending in Slovenia. The wife withdrew her claim. This was accepted by the husband. The proceedings were "stopped" with effect, it appears, from 24th September 2010.
51. I am also satisfied that there has been no "decision", within the meaning of Article 2(1) of the Maintenance Regulation, in Slovenia in respect of spousal maintenance. There has been no "decision in matters relating to maintenance obligations given by a court" in Slovenia because the wife's claim stopped before the court made any decision in respect of it. I fully accept that a decision can include a determination that a claim is rejected or dismissed, as submitted by Mr. Marshall, but that did not happen in this case. The claim was merely withdrawn or discontinued. (I should add that, in my view, there is also no judgment within the meaning of article 32 of Brussels I.)”
Moylan J then went on to consider whether, irrespective of the proceedings in Slovenia, the English court had jurisdiction to entertain a claim for spousal maintenance under Part III, it being a requirement of the MFPA l984, s15 (1A) that
“if an application or part of an application relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the maintenance regulation…those requirements are to determine whether the court has jurisdiction to entertain the application or that part of it.”
Moylan J’s decision on this point is as follows:
“53. I have already referred to section 15 of the 1984 Act. Section 15(1) contains general jurisdiction provisions. Section 15(1A), as referred to above, deals with claims within the scope of the EU Maintenance Regulation. Section 15(2) deals with proceedings governed by the Part I of the Civil Jurisdiction and Judgments Act 1982.
54. The jurisdiction provisions of the EU Maintenance Regulation are set out in article 3: [the terms of Article 3 are then set out].
55. It is clear that England and Wales had jurisdiction in respect of maintenance at the commencement of the wife's application, because the wife was then, and I would add remains, habitually resident in England and Wales.”Arguments on appeal
The husband’s case on appeal has been presented with great skill, tenacity and charm by Mr Scott who focuses on the sole question of whether Moylan J should have permitted the Part III application to proceed insofar as it consists of the wife’s claim for maintenance. At paragraph 10 of his skeleton argument Mr Scott helpfully distils the structure of his argument to the following four stages:
i) The Slovenian spousal maintenance order (as he terms it) was a “decision” for the purposes of the Maintenance Regulation. Alternatively it was a “court settlement” which must be treated in the same way as a decision.
ii) As a decision emanating from a member state which is bound by the 2007 Hague Protocol, it must be recognised without question.
iii) The Slovenian spousal maintenance order amounted to a final termination of W’s maintenance entitlement in Slovenia once 12 months had passed from the date of the order [this being a reference to the limitation period imposed by the domestic law in Slovenia].
iv) Once a party’s spousal maintenance entitlement has been finally determined and terminated by order in the member state of origin, it is not open to that party to claim spousal maintenance in another member state. The effect of recognising the Slovenian order is that it must be given the same effect in England that it has in Slovenia.
With respect to the final stage (iv) of his case, Mr Scott submits that the circumstances adverted to by Lord Collins in Agbaje v Agbaje
 UKSC 13;  1 AC 628 at paragraph 55 arise and the court must determine whether or not a judgment in another EU state that is entitled to recognition under the Maintenance Regulation in England and Wales thereby prevents the English court making an award for maintenance under Part III.
Mr Scott is right to regard each of these separate points as “stages” as the subsequent points can only be reached if their predecessors have been established. I therefore propose to consider his preliminary submission, namely that the Slovenian court has made a “decision” or that there has been a “court settlement” regarding spousal maintenance as, if that point goes against the husband, it will not be necessary to consider the subsequent stages of his argument.
Mr Hale, in addition to supporting the judge’s determination on the issue of “decision” and/or “court settlement”, in a characteristically robust and clear manner, seeks to argue, in the alternative, that the Part III jurisdiction is, in any event, intended to “top up” the outcome of proceedings in an overseas jurisdiction and that even if there were an existing “decision” that required recognition and enforcement under the Maintenance Regulation, that would not, of itself, prevent the English court from exercising its Part III jurisdiction with respect to maintenance. Again, for the reason I have explained, if the husband’s case falls at the first hurdle by failing to overturn Moylan J’s determination on the preliminary point as to “decision” it will not be necessary to consider Mr Hale’s supplementary arguments. “Decision” or “Court settlement”?
I have already set out the material, such as it is, with respect the content of the two orders of the Slovenian court, in September 2010 and November 2011 relating to the wife’s claim for maintenance. Until his case developed during the course of oral argument, following the court enquiring as to the existence of any copy of the order of September 2010, Mr Scott based his submissions entirely upon the wording of the November 2011 order. At the close of his submissions he confirmed that his primary case was still based upon the 2011 order, but that he referred to the 2010 order to support his basic premise.
The husband’s case is put in attractively short and clear terms. The November 2011 document is a court order. The text dealing with spousal maintenance is immediately preceded by the word “Decided” in large font and bold capital letters and it states that “Due to the partial withdrawal of the complaint, the proceeding regarding the following claim for maintenance has been stopped”. The “following claim for maintenance” includes the claim for spousal maintenance. Mr Scott therefore submits that there can be no doubt that this is a “decision” as a result of which the wife’s claim for maintenance “has been stopped”. Mr Scott accepts that there was no adjudication or determination by the court. He submits that it is not the process itself, but the end of the process, that is important. The effect of this process was to bring the wife’s maintenance claim to an end and that end result is either a “decision” or a “court settlement”.
The court suggested to Mr Scott that the wording of clause I was in the form of a simple recital, rather than a court order. It was further suggested that that wording was in contrast to each of the other six clauses which were all in the mandatory terms usually associated with a court order, for example clause II states “the marriage entered into on…shall be dissolved”. Mr Scott submitted that, notwithstanding clause I having the appearance of a recital, it was in fact a decision.
As I have indicated, it was only during the course of oral submissions that this court became aware of, and asked to see, the court record for the hearing in September 2010. The relevant content of the order is summarised at paragraph 19 above. Mr Scott accepted the court’s suggestion that the September 2010 hearing seemed to be in the form of a clearing house or case management process during which the parties were encouraged to indicate those matters which were agreed, or not pursued, and those which remained in issue.
Mr Scott’s primary submission is that this was a “decision”; if that is wrong, then it was most certainly a “court settlement”. He points to the record of the husband agreeing to the wife’s withdrawal of her claim. In response to a submission from Mr Hale, Mr Scott rejected the idea that in order to be “a court settlement” there was a need for some form of concluded agreement with an element of compromise or, in contractual terms consideration, from each party.“Decision/court settlement”: discussion
In approaching the determination of the preliminary issue raised by the first stage of Mr Scott’s submissions regard must rightly be had to the judgment of Moylan J. Mr Hale submitted that the judge’s determination on this point was a finding that should only be set aside if this court were satisfied that the judge had been “wrong”. With respect to Mr Hale, I do not agree. The issue raised is primarily a matter of law, but is, in part, I accept, a mixed issue of law and fact. This is not a point upon which the judge heard oral evidence and this court is therefore in the same position as the High Court was in forming a view. Further, as the determination of this issue goes to the question of jurisdiction, I agree with Mr Scott’s submission that this court has a duty to undertake its own analysis of the point. In doing so, however, it is right for this court to take full note of the fact that a judge who is most experienced in international matrimonial finance jurisprudence, and, in particular the Maintenance Regulation, has come to the conclusion that he reached. Secondly, this court is entitled to take full note that that conclusion sits within a conspicuously well constructed judgment that demonstrates full knowledge of the law and of the facts of this case, including all the extensive proceedings between the parties in Slovenia.
It is neither necessary nor appropriate for this court to attempt a global definition of the terms “decision” and “court settlement” for the purposes of determining this appeal. For the reasons that now follow, in my view the facts of the present case fall a long way short of establishing that the Slovenian court made a ‘decision’ or that there was a ‘court settlement’ with respect to spousal maintenance.
Dealing with ‘decision’ first, Mr Scott accepts that the Slovenian court did not adjudicate upon or otherwise determine the wife’s claim for maintenance. Whilst it may be that there are other means by which it is possible for there to be a ‘decision’ by a court, a process of adjudication or determination are normally characteristic of a court making a decision. In the admitted absence of the court making its own adjudication or determination it is therefore necessary to look with care at any alternative means by which it is suggested that, nevertheless, there has been ‘a decision in matters relating to maintenance obligations given by a court’ (Article 2.1(i)).
Mr Scott submits that it is the end result, rather than the court’s process, which is important. In this regard he points to the prominent heading ‘Decided’ immediately above clause I in the November 2011 order which records that the wife withdrew her complaint with the result that her claim for maintenance ‘has been stopped’. Although his submissions are far more eloquent, they amount to a rhetorical exclamation of ‘what more do you need?’ for this to be ‘a decision’ than the relevant words appearing immediately under the heading ‘Decided’ and the clause dealing with maintenance sitting as first in line with six other clauses which are each plainly in the form of a decision.
The husband’s focus upon the end of the process, that is the format of the November 2011 court record, represents the high point of his case on ‘decision’. Whilst the points about format may have some superficial validity, it cannot be right for the court in England and Wales to be limited in its determination as to jurisdiction solely to a consideration of the manner in which matters have been laid out on a page, even if that page is a record of court proceedings. I do not agree that we should solely be concerned with the end result to the exclusion of any consideration of the substance of what occurred in the Slovenian proceedings.
It is in this regard that the record of the hearing in September 2010 is important. As I have already observed, this record describes an early case management hearing at which the parties were being encouraged either to settle or at least reduce the issues between them. In that setting, amongst other matters, the husband agreed not to contest the divorce and the wife indicated that she wished to revoke her claim for maintenance and the husband agreed to that course. I am in a like position to that of Moylan J in holding that this sequence of events cannot amount to a ‘decision’ of the Slovenian court. There was a decision, but it was the wife’s decision to withdraw her claim; it was not ‘a decision … by a court’ as required by Article 2.1(i).
Although the passage dealing with spousal maintenance in the court document for November 2011 appears as clause I under the heading ‘Decided’, the wording of that passage is very much in the form of a recital of the circumstances rather than a decision of the court. It is in contrast to each of the other six clauses which are in the form of mandatory statements as to the outcome of the proceedings.
The reality is, as Moylan J correctly held, that there has been no ‘decision’ within Article 2(1) in Slovenia because the wife’s claim was discontinued before the court made any decision with respect to it.
So far as the suggestion that there was a ‘court settlement’ is concerned, the judgment of Moylan J indicates that this was not a point raised for consideration before him. The husband’s case is that, as the court record shows, the husband agreed that the wife would withdraw her claim for maintenance; that agreement is, it is said, evidence of ‘a settlement in matters relating to maintenance obligations which has been approved by a court or concluded before a court in the course of proceedings’.
Unusually for proceedings which involve the construction of the terms of foreign court orders, neither party has presented any expert evidence as to the law of Slovenia and, on this particular point, the English court is left to try to understand the effect of the words in various court documents for itself. We do not know if a husband’s consent is required before a wife is permitted to withdraw an extant claim for maintenance. The significance of the recording that the husband stated his agreement to the withdrawal is to that extent ambiguous.
The husband does not assert a positive case that the withdrawal by the wife of her maintenance claim was part of any agreement he had made with her prior to the September 2010 hearing; it was not therefore a settlement in the sense of an pre-agreed compromise of claims. The record suggests that the withdrawal was probably a unilateral statement of her position made by, or on behalf of, the wife in the face of the court as part of the process of narrowing contested issues. Whilst any attempt at conjecture must be approached with caution, it is the case that this wife was habitually resident in the UK by September 2010 and that, therefore, she had a choice of jurisdictions under the terms of Maintenance Regulation, Article 3 in which to prosecute a claim for maintenance. She could continue with a claim in Slovenia or apply to make a fresh claim, as she has now done, in England and Wales. That a wife in this position may unilaterally opt to pursue her claim in England rather than Slovenia is entirely understandable. If that was the reason for her withdrawal, then the husband’s vigorous contesting of her ability to bring a claim here does not indicate that there was any ‘settlement’ between them on that issue. Conversely there is no positive evidence of a settlement in the sense that the wife at any stage agreed or accepted that there should not be a spousal maintenance obligation upon the husband.
It is not necessary however to descend to conjecture. It is the husband who asserts that there was a ‘court settlement’ with respect to the withdrawal of the wife’s maintenance claim and it is for him to establish that that was the case. All he can point to is the fact that she withdrew the claim and he is recorded as being in agreement with that course. For my part, and in the absence of any evidence whatsoever that this was as a result of a settlement between them on the issue of his maintenance obligations to her, I regard the record as falling well short of establishing that this was a ‘court settlement’ as defined by Article 2(1).
As a result of the conclusions to which I have come on the issue of ‘decision/court settlement’, the husband’s case, as Mr Scott accepts, must fall at the first stage. It is not therefore necessary to consider the subsequent stages of his argument.
For the reasons that I have given I would therefore dismiss the appeal and thereby uphold the decision of Moylan J on the issue of spousal maintenance.Lord Justice Sales
I agree.Lady Justice Black
I also agree.