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ANCILLARY RELIEF: Traversa v Freddi [2009] EWHC

Date:30 APR 2009

(Family Division; Bodey J; 30 April 2009)

The Italian husband and wife had met in England, but were married in Italy. The couple elected the 'separate property regime'. For a time the couple lived together in Italy, but after a time they purchased a restaurant in England, and the husband moved to England to run it, while the wife remained in Italy. The business later failed and was sold; the husband retained the net proceeds of sale. The wife then purchased a fast food outlet in London for the husband to run. After discovering that the husband was having a relationship with another woman, the wife excluded the husband from the fast-food business, which had not been successful (it was subsequently sold for less than it had cost), and issued first separation and then divorce proceedings in Italy. The husband was aware of the proceedings, but did not participate, apparently because of lack of funds. The husband then applied to the English court for leave to seek financial relief under Pt III. The husband was now working as a waiter. The wife owned the family home in Italy and a property in England, which the husband was living in; the husband owned a property in Italy, which the wife had purchased for him some years earlier. An expert in Italian law confirmed that the husband might have been able to obtain Italian legal aid, but would not in any event have received any maintenance in Italy, as he was capable of providing adequate income for himself and there were no objective reasons preventing him from properly supporting himself.

It was not strictly necessary under the Act to find that there was an 'overwhelming connection' with one country or another, nor even, strictly speaking, to reach a precise determination as to the country with which the parties had 'the greater connection'. Having said that, following Agbaje v Agbaje it was inevitable in practice that the court would look comparatively at the parties' respective degrees of closeness to the two relevant jurisdictions. In a case in which each party essentially lived in a different country, such a balancing exercise was easier said than done, but, overall, the superior connection in this case was with Italy, which was where the main family home had been. The Italian system happened to permit parties of their own free will to elect how they wished to organise their financial and property affairs, and the Italian court had not treated the husband unjustly. The husband could reasonably have done more to protect his interests in the Italian proceedings. Following the guidance of Agbaje, it was not appropriate to grant the husband leave to apply for financial relief under Pt III.