AA v BB
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moylan |
| Judgment Date | 04 November 2014 |
| Neutral Citation | [2014] EWHC 4210 (Fam) |
| Court | Family Division |
| Docket Number | No. FD13F00568 |
| Date | 04 November 2014 |
2014 EWHC 4210 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Moylan
No. FD13F00568
Mr. C Hale QC and Mr. H Clayton (instructed by Healys LLP) appeared on behalf of the Applicant.
Mr. P Marshall QC and Mr. P Newman (instructed by Hughes Fowler Carruthers) appeared on behalf of the Respondent.
AA v BB (Application to Set Aside Leave: s.13 MFPA 1984)
( )
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any publication the anonymity of the parties and their children must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
In this judgment I will refer to the parties as "the husband" and "the wife", although their marriage was dissolved by an order made in Slovenia on 8 th November 2011.
On 3 rd October 2013, Eleanor King J (as she then was) gave the wife leave to apply for financial remedy orders under section 13 of the Matrimonial and Family Proceedings Act 1984 ("the 1984 Act"). The application, in accordance with the rules, was made without notice to the husband. Eleanor King J also gave directions, including that the parties should file Forms E. She listed the First Appointment for 5 th March 2014.
Following the grant of leave, the wife issued an application for financial remedy orders for herself and for the parties' youngest child, CC, who is in full-time education.
The hearing in March 2014 was not effective because no confirmation had been received through the Foreign Process Department that service had been effected on the husband. Eleanor King J made a new order for the service of Forms E.
On 12 th May 2014, solicitors came on the record in this jurisdiction as acting for the husband.
On 16 th June 2014, the husband issued an application for the adjournment of the wife's financial application and, effectively, for a stay of the provisions of Eleanor King J's orders. That application was listed, with a one day time estimate, for hearing on 27 th October 2014 at the same time as the adjourned First Appointment.
On 13 th October 2014, the husband issued a further application. This seeks an order that the leave granted by Eleanor King J be set aside and/or struck out under r.4.4 of the Family Procedure Rules 2010. It also seeks a stay of the wife's application, specifically under articles 12 or 13 of Council Regulation (EC) No 4/2009, the Maintenance Regulation, which came into force in the United Kingdom on 18 th June 2011.
During the course of the hearing the parties' submissions were focussed on the Maintenance Regulation although, because the proceedings in Slovenia were commenced prior to 18 th June 2011, the relevant Regulation is, in part, Brussels I ( Council Regulation (EC) No 44/2001): see article 75 of the Maintenance Regulation. However, given that I am not aware of any material differences for the purposes of this case, I propose to adopt the approach of the parties and refer to the relevant articles within the Maintenance Regulation.
For the purposes of determining these applications, I have read the documents in the bundle, which include the wife's statement dated 3 rd July 2013, in support of her application for leave, and a number of judgments and orders from Slovenia. I have also read and heard submissions from Mr. Marshall QC and Mr. Newman on behalf of the husband and Mr. Hale QC and Mr. Clayton on behalf of the wife.
Background
Giving a summary of the history, the husband is aged 62; the wife is aged 57. They were both born in Kosovo, then a part of Yugoslavia. They married in Kosovo in 1981. They have four children, aged between 20 and 33. In or about 1991 the family moved to Slovenia. At that time the wife was working in Pristina. At about the same time, the parties established a company in Slovenia ("the company").
The family remained living in Slovenia until 2008 when the wife and children moved to live in England. She, and they, have lived here since then. The husband remained living in Slovenia until 2010, when he moved to Dubai, where he currently still lives.
At or about the same time as she moved to England, the wife withdrew €5 million from an account in the parties' joint names in Austria. This led to the husband commencing proceedings in Austria which were resolved in July 2010 when, on appeal, the wife was permitted to retain the sum she had removed from the joint account. During the course of its judgment, the Austrian court referred to there being "distributable assets of at least €14 million." This was, it appears, in addition to the sum withdrawn by the wife.
I have no clear understanding of the parties' financial resources. The wife has provided very broad evidence in her statement, including relying on media reports to the effect that the husband is worth an estimated €68 million. The husband has not yet filed any evidence.
As referred to above, it is clear that the parties established a business in Slovenia in about 1990. The husband worked in the business as a director and the wife as a vice-president. The company is owned by the husband. The wife says that they purchased a state run company with their joint funds and this became the company. The company is said to be extremely successful with a turnover, at least at one time, of over $1 billion.
The wife has produced a schedule of the assets held by the parties in 2008. It is only a summary schedule. It includes assets located in Slovenia and in a number of other jurisdictions, including Kosovo, Switzerland, Ireland, Dubai and the BVI. The schedule does not seek to identify the total value of the resources. Some values are given: for example, a property in Slovenia, now held in the name of an Irish company (which is solely owned by the husband), is said to have cost more than €10 million; an account in Switzerland is said to have held €7 million; and the account in Austria, from which the wife withdrew the €5 million, is said to hold a further €1.8 million. There is reference to other accounts in Austria. Other companies and properties are listed, including a number which, as I have said, are located in jurisdictions other than Slovenia.
Slovenian Proceedings
Turning now to the Slovenian proceedings, on 20 th June 2008, the wife began divorce proceedings in Slovenia. She also sought maintenance for the two younger children.
On 23 rd December 2008, the wife made a separate claim to establish both the scope of, and the parties' respective shares in, their joint assets.
On 9 th October 2009, the wife included in her June 2008 application a claim for maintenance for herself.
On 24 th September 2010, the wife withdrew her claim for maintenance for herself and also withdrew her claim for maintenance for the elder of the two children for whom she had claimed called DD.
It is recorded in a later judgment, dated 8 th November 2011, from the Ljubljana District Court that the husband "showed express agreement with the withdrawal of the claim for the payment of maintenance to the claimant at the hearing on 24 th September 2010." The judgment then continues: "For this reason the court stopped the proceeding with regard to (this) claim." In the operative part of its judgment, which appears under the word "Decided", it is stated that "Due to the partial withdrawal of the complaint the proceeding regarding the following claim for maintenance has been stopped." The "following claim" was, in fact, two claims, which are identified as being the wife's claim for maintenance for herself and her claim for DD.
The hearing on 24 th September 2010 had been preceded by a consent Order, made on application by DD by District Judge Reid, sitting at the Principal Registry of the Family Division, which provided that the husband should pay DD £276,000.
The judgment of 8 th November 2011 also awarded the wife maintenance for the youngest child, CC, at the rate of €5,460 per month. The husband appealed this part of the decision. His appeal was allowed on 29 th February 2012 and maintenance for CC was reduced to €3,000 per month. The wife appealed to the Supreme Court of Slovenia. Her appeal was successful and a rehearing was ordered. At the rehearing on 6 th February 2013 the original sum of €5,460 was reinstated.
On 10 th May 2011, the Ljubljana District Court gave its decision and a partial judgment in respect of the wife's December 2008 claim. The court dismissed the wife's claim in respect of all assets which were not located in Slovenia. These include, as referred to above, a significant number of companies and properties located in a number of other jurisdictions. The judgment provides for certain assets, principally specific properties in Slovenia, to be divided equally between the parties and states that "the court will decide on the remaining property in the final decision." The husband was also ordered to pay the wife a lump sum of €290,000. The husband had contended that the joint Slovenian assets should be divided as to 90% to him and 10% to the wife.
The judgment explains the dismissal of the wife's claim in respect of assets located outside Slovenia. Under the Private International Law & Procedure Act 1999, the Slovenian court is not competent to determine disputes concerning assets, including real estate or companies, located outside...
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