Ankita Goyal v Amit Goyal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 04 November 2016 |
| Neutral Citation | [2016] EWFC 50 |
| Docket Number | Case No: FD12D02732 |
| Court | Family Court |
| Date | 04 November 2016 |
[2016] EWFC 50 (Fam)
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD12D02732
The Applicant appeared in person
James Turner QC (instructed by Forsters LLP) appeared pro bono for the Respondent
Hearing date: 17 October 2016
Background
The background to this case is well known to the parties. It has been going on for far too long and so far as I can tell there is virtually no money left. A short background summary of the issues in hand can be found by the uninformed reader in the decision of the Court of Appeal dated 29 July 2016 ( [2016] EWCA Civ 792), available on Bailii.
Further background can be found in a permission judgment given by Kitchen LJ on 27 February 2014 ( [2014] EWCA Civ 523), also on Bailii, in which the full names of the parties are given. Therefore, there is no reason to accede to Mr Turner QC's request that the forenames (but not the surnames) of the parties should be obscured.
The decision of the Court of Appeal concerned an Indian pension fund — an annuity — established by the husband in September 2014: see paragraph 9 of the judgment of McFarlane LJ.
The Court of Appeal rightly set aside the order of Judge Brasse dated 6 January 2016. That was an impermissible freestanding injunctive order requiring the husband to transfer to the wife his interest in the Indian pension fund in circumstances where he had earlier in October 2015 awarded the wife a lump sum worth about £19,000 and dismissed all her remaining capital claims including her claims for property adjustment. As I will explain, it would have been open to the Court of Appeal to have reframed the order of Judge Brasse to position it within the powers available to the court so that it achieved much the same effect; but it did not do so. Instead it set aside the entirety of the offending order, including the provisions which made declarations as to the beneficial ownership of the Indian pension fund; and ordered that the wife's claims for a pension sharing order should be "reheard".
Judge Brasse found that the Indian pension fund belonged to the husband and dismissed his case that he had transferred all his interest in it to a Mr Deshmukh. He made strong findings of dishonesty against the husband. McFarlane LJ did not in his judgment question those findings, and indeed relied on them. He stated however at paragraph 15 that "the focus of this appeal is not upon the judge's findings of fact but upon the order that he made in the light of those findings." In paragraph 47 he held that paragraphs 1 and 2 of the order should be set aside — and those only concerned the injunction order. However, as I have already stated, the actual order of the Court of Appeal sets aside not merely the illegitimate free-standing injunction orders (i.e. paragraphs 1 and 2), but the order "in its entirety" made by Judge Brasse, and this included the key declarations as to the beneficial ownership of the fund. Therefore, it seems to me that, although this was probably unintended by the Court of Appeal, the question of the ownership of the fund is at large and needs to be re-determined, although in such determination the findings of Judge Brasse are naturally admissible and influential, if not decisive.
The time allocated for the hearing before me has not been sufficient to rehear the beneficial ownership question and in any event Mr Deshmukh has not been served with the paperwork concerning this issue. Nor has there been time to deal with the cross-applications to vary the order for spousal maintenance made earlier by Judge Brasse on 9 October 2015. They will be determined by me on a later date, although I will have something to say about the wife's application (which I deemed to have been made on 9 August 2016) later in this judgment.
This judgment is principally concerned with Mr Turner's argument that even if the fund is beneficially owned by the husband the wife's claim for a pension sharing order should nevertheless be dismissed in limine for two reasons:
i) An order for pension sharing under section 24B Matrimonial Causes Act 1973 cannot be made in respect of an overseas pension; and/or
ii) The wife has adduced no evidence that such an order, were it to be made, would be enforced by the courts in India.
II
Can an order under section 24B of the Matrimonial Causes Act 1973section 24B of the Matrimonial Causes Act 1973 be made in respect of an overseas pension?
Mr Turner QC's submission is laden with irony. Judge Brasse held in paragraph 29 of his judgment of 6 January 2016 that "I am unable to make a pension sharing order or a pension attachment order because the HDFC pension is in fact placed in India". In the light of this the judge made his free-standing injunction order (he could not have made a property adjustment order in respect of the fund, either by way of transfer or variation of settlement, as he had dismissed those claims on 9 October 2015). In the Court of Appeal Mr Turner QC suggested, admittedly tentatively, that this finding was wrong and that there may well have been power, subject to his second point, to make an order under section 24B in respect of the Indian pension. Therefore, that was the route that the judge should have followed rather than his free-wheeling adoption of the injunction powers of the court.
Why did Mr Turner QC accept that there was, at least in principle, power to make a pension sharing order in respect of a foreign pension? Because the notes on page 1158 of the Family Court Practice 2016 say so. They state:
"The court is able to make a pension sharing order against a foreign pension. Whether or not it will exercise its jurisdiction to do so will depend upon the reaction of the pension scheme when served with the application (Pension Schemes (Application of UK Provisions to Relevant Non-UK Schemes) Regulations 2006, SI 2006/207, as amended)."
Further, it is clear from paragraphs 29 – 32 of the judgment of McFarlane LJ that Mr Turner QC undertook a limited statutory analysis which he suggested supported the proposition that a foreign pension was within the reach of section 24B.
Did the Court of Appeal accept this position? It would seem so. In paragraph 39 McFarlane LJ stated in an obiter dictum (emphasis added):
"It is therefore plain that if the judge had understood that he could make a pension sharing order under the MCA l973 with respect to the annuity plan based in India he would have done so. At the time of his decision, however, he understood that the fact that the policy was based outside the jurisdiction of England and Wales placed it outside of the reach of the English Family Court. It is now common ground between the parties, and accepted by this court, that, in terms of the overall principles, the judge was in error in this regard. Although, as Mr Turner submits, there would be a need to consider, possibly with the assistance of expert evidence, whether the terms of the policy prevented transfer, what the reaction of the financial institution holding the policy was and whether a pension sharing order with respect to that policy by the English court would be enforceable under the law of India, those are specific matters of detail relating to this policy and, because of the erroneous understanding of the judge on the issue of international jurisdiction, the court simply did not engage with those lower level details at the hearing."
Therefore, the Court of Appeal ordered that the wife's pension sharing application should be reheard, and the case has been allocated to me.
Now, Mr Turner QC argues that in fact Judge Brasse was right all along and there is in fact no power to make a section 24B order in respect of a foreign pension. He says that the notes in the Family Court Practice are wrong and the statutory instrument referred to has nothing to do with the sharing of a foreign pension (it is concerned with the tax treatment of payments received under such pensions). One might think that Mr Turner QC should be stuck with his concession, but it is trite law that the parties cannot confer a non-existent jurisdiction on the court by agreement.
As the matter seemed to me to be of some importance to the professions I gave permission for the FLBA and Resolution to file written submissions. I have received helpful notes from Philip Marshall QC on behalf of the FLBA and from David Salter (an acknowledged expert in this field) on behalf of Resolution.
III
The presumption against extra-territorial effect of a statute
In the excellent book Pensions on Divorce (Second Edition 2013, Sweet and Maxwell) it is stated at paragraph 6-004 that:
"Once pension rights have been exported then ordinarily the United Kingdom system of pension intervention on divorce would give way to that country to which the rights had been exported."
In contrast (at least to some extent), paragraph 1654 of Butterworths Family Law Service (Binder 4), which was in fact written by David Salter, states:
"The definition of a 'pension arrangement' is sufficiently wide to enable a pension sharing order to be made against an overseas pension. Certain arrangements are disqualified as the destination for a pension credit. However, the general scheme of WRPA is that an overseas arrangement within the meaning of the Contracting-Out (Transfer and Transfer Payments) Regulations 1996 will qualify as a destination arrangement. In any event, the court will not exercise its discretion to make a pension sharing order relating to an overseas pension without being satisfied that the overseas pension arrangement will cooperate.
It is therefore important always to obtain written confirmation from the overseas pension arrangement of a willingness to implement the English...
To continue reading
Request your trial
-
Goyal v Goyal (no 3)
...1 WLR 2841, [2012] BPIR 476. Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] ETMR 26, [2014] FSR 29, [2014] CTLC 49. Goyal v Goyal [2016] EWFC 50, [2017] 1 FCR 188. M (children), Re [2013] EWCA Civ 1170 (4 October 2013, unreported). R (on the application of Mandic-Bozic) v British As......
-
Goyal v Goyal (No 3)
...2017. MOSTYN J handed down the following judgment.1 This judgment follows on from my judgment dated 4 November 2016 (Goyal v Goyal (No2) [2016] EWFC 50; [2016] 4 WLR 170), and it is my hope that it will bring to a conclusion thislong running and futile litigation between the parties.2 In pa......
-
Viki Natasha Maughan v Richard Michael Edmund Wilmot
...Sigorta Fonu v Merrill Lynch Bank and Trust Company (Cayman) Limited [2011] UKPC 17, Blight v Brewster [2012] 1 WLR 2841, Goyal v Goyal [2016] EWFC 50, [2017] 2 FLR 236, [2016] 4 WLR 170, [2017] 1 FCR 188 at 23 But I am not being asked to make such an order. If the husband does not cooper......