AB v Jjb
| Jurisdiction | England & Wales |
| Judge | Sir Peter Singer |
| Judgment Date | 03 February 2015 |
| Neutral Citation | [2015] EWHC 192 (Fam) |
| Docket Number | Case No: SL14D00287 |
| Court | Family Division |
| Date | 03 February 2015 |
[2015] EWHC 192 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Peter Singer
Case No: SL14D00287
William Tyzack (instructed by Penningtons Manches LLP) for the applicant former wife
Rebecca Bailey-Harris (instructed by Stowe Family Law LLP) for the respondent former husband
Hearing date: 6 December 2014
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. The judge requests that any publication relating to this Judgment should respect the wish of the parties to keep their identities confidential: and thus that this Judgment should be copied for any distribution and cited as AB v JJB (EU Maintenance Regulation: modification application procedure)
Introduction
The application before me concerns Herr B, Mrs B and a Form A. The first (and it might have been the last) question I have to decide is whether the Form A dated 11 March 2014 and issued on behalf of Herr B in the Slough County Court (before the Family Court was constituted) validly seises that court with competent power to make an application for a financial order: specifically an order varying a periodical payments order. The question arises because on 16 May 2014 solicitors acting for Mrs B applied to the court by way of primary relief for an order striking out the Form A for want of jurisdiction. Their application notice frames it more compendiously and on alternative bases: but at the hearing the foremost issue was recognised to be whether the process adopted by Herr B engages or fails to engage the court. That application was on 23 July 2014 transferred for hearing in the High Court and 8 and 9 December were on 31 July 2014 fixed for that hearing.
If this judgment is reported then may I suggest it be under the title AB v JJB (EU Maintenance Regulation: modification application procedure), as from that first question I go on to consider the procedural requirements for initiating an incoming modification application made under the European Council Regulation (EC) No 4/2009: hereinafter the Maintenance Regulation
In the light of their matrimonial history it seems more than usually artificial and inappropriate to refer to these parties as what in judgments such as these in conventional style are described as 'the husband' and 'the wife.' Herr B was born in Germany and Mrs B in America. He remained a German national and she has dual English and American nationality. They married first in America in December 1966. During part of their first marriage they lived in England, and their first divorce took place here in 1974. But it did not last, cohabitation resumed after some few months, and they remarried (again in America) in 1979. In 1997 (or according to German court documents dating their separation from 1994: but the discrepancy is of no consequence) their second marriage fell into disarray. In November 2000 they divorced again, this time in Germany. They have since lived apart, Herr B remarried in 2001 or thereabouts, and Mrs B still has as her companion (I choose a neutral word) the same gentleman whom she met (according to her) in 2002. They have two children, both adult. Herr B is now 78 and Mrs B is 70 years old.
Mrs B would have had good reason to be surprised and perplexed some weeks after the initiation of this procedure when she received as first wind of it, out of the blue, a letter dated 2 April 2014 from Stowe Family Law, solicitors acting for Herr B, who had never previously been in communication with her which notified her that the court had given standard directions in Form C requiring her to file by 2 June the compendious form of financial statement (Form E) giving full details of her property and income, in advance of a First Appointment fixed for hearing before a judge in Slough on 7 July. She was sent a copy of the Form C but was not then or previously served with the initiating Form A by Herr B's solicitors or, so it would seem, by the court as FPR rule 9.12( 1) or (2) require.
On 29 April 2014 Penningtons Manches, having come on record to act for Mrs B, sent a considered letter suggesting reasons why Herr B should withdraw his Form A application and explaining that failing that they would themselves apply to dispose of it by striking it out, or to dismiss it for want of jurisdiction, or as an abuse of the court's process. Herr B did not and they did. And so here we are more than seven months, over 150 pages of written evidence (including exhibits and translations), about 40 pages of correspondence and of the order of £110,000 of costs expended from first to last in total on both sides, inclusive of VAT.
The Form A and its prerequisites
This gives notice of Herr B's intention to proceed with an application for a financial order, namely an application to vary a periodical payments order. A 'financial order' is defined within the interpretation provisions of rule 2.3 of the Family Procedure Rules 2010 (the FPR). Leaving aside for the moment 'a variation order,' each of the orders there specified is an order to make which specific jurisdiction exists under the Matrimonial Causes Act 1973 (or equivalent forms of relief in the case of applications under the Civil Partnership Act 2004). These include a pension sharing order. A variation order and a pension sharing order for their part are defined in rule 9.3 but again, and specifically, mean such orders made 'in proceedings under the 1973 Act' (or 'in proceedings under the 2004 Act': I will hereafter for simplicity's sake make no further reference to the 2004 Act or to its broadly corresponding provisions).
In the 1973 Act the provision regulating variation applications is section 31. Section 31(1) applies to the orders specified in section 31(2) which include (amongst others) periodical payments and secured periodical payments orders but only (as the opening words of sub-section (1) require) 'where the court has made an order' to which the section applies.
On the face of it therefore the variation power in the 1973 Act which Herr B invoked (or sought to invoke) by this Form A seems as a necessary prerequisite to suppose an order made under the 1973 Act. And the power to make orders such as for periodical payments and secure periodical payments and pension-sharing in turn presupposes proceedings conducted in accordance with the same Act in England and Wales for divorce (or nullity) which have reached finality, that is to say in the case of divorce when the decree is made absolute and the marriage is terminated. (An exception to this prerequisite occurs when application is made with leave for financial remedies after foreign decree, under Part III of the Matrimonial and Family Proceedings Act 1984, not relevant for present purposes.)
The provenance of the order which Herr B seeks to vary
I do not need to investigate whether any and if so what orders were made at the time of these parties' first divorce in England in 1974. They apparently resumed cohabitation within months. The second marriage would have put an end to the efficacy of any orders for continuing provision and would have started time running again (as it were) against the eventuality that in subsequent divorce proceedings an appropriate court might make such orders within its domestic jurisdiction and powers as might be appropriate if the parties themselves failed to regulate their financial position by agreement.
This the German District Court of Leverkusen did on 29 November 2000.
The successive financial orders made in Germany
The Leverkusen Court divorced the parties in proceedings instituted by Herr B on the basis that their admitted separation of more than two years' duration and Mrs B's consent to a divorce demonstrated irretrievable breakdown and thus grounds for divorce pursuant to section 1(2)(d) of the Matrimonial Causes Act 1973. Although in this case I have no evidence of German law, it is apparent from the status order made on 29 November 2000 that the German court applied its own domestic rules in treating English law as applicable on the basis that England was the country of last joint residence and the country where Mrs B remained ordinarily resident.
When however the Court's consideration turned to financial matters it made orders which it was empowered to make under German domestic law in relation to the maintenance of Mrs B and the significantly large pension entitlements of Herr B which, having retired and reached retirement age, he then enjoyed from two of his former employers. Herr B makes the somewhat surprising suggestion that Germany was chosen as the forum for their second divorce because it was approximately equidistant between what he describes as his 'primary base' in Switzerland at the time, and her address at the former matrimonial home in England. What on the face of it would have made a German court a much more obvious choice would have been its ability to make the orders in relation to Herr B's pensions upon which they were agreed: but that is supposition and is not germane, at least not at this stage of the discussion.
The Court in its orders of that day recognised the parties' agreement that German law should apply to the consequences of divorce 'set out below,' namely its financial consequences. No orders of a capital nature were made to reflect increases in asset value ( Zugewinn) during the marriage as would normally have been the case in a country which, as I understand it, operates a system based on matrimonial acquest: for the good reason that the parties waived such a claim. Mrs B suggested in her evidence that this was because, according to her husband's representations to her, they had...
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