B v B
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 09 May 2017 |
| Neutral Citation | [2017] EWHC 1029 (Fam) |
| Docket Number | Case No: ZC15P08017 |
| Court | Family Division |
| Date | 09 May 2017 |
[2017] EWHC 1029 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice MacDonald
Case No: ZC15P08017
The Applicant appeared in person with the support of a McKenzie Friend
Mr Brent Molyneux QC (instructed by Sears Tooth) for the Respondent
Hearing dates: 27 and 28 April 2017
This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.
INTRODUCTION
In this matter, I have before me an application by Mrs B (hereafter 'the Applicant') for enforcement by such method as the court may consider appropriate of certain provisions of a final order in matrimonial finance proceedings made by District Judge White on 13 October 2011. The application for enforcement was issued on 20 August 2015. The respondent to that application is the Applicant's ex-husband, Mr B. In this judgment, I will continue to refer to the parties as the Applicant and the Respondent as Mrs B, not unreasonably, objects to being referred to as "the wife" so long after the dissolution of her marriage to Mr B. The Applicant represents herself with the assistance of a McKenzie friend. The Respondent is represented by Mr Brent Molyneux, Queen's Counsel.
At the outset of this final hearing of the Applicant's application I was required to deal with an issue of jurisdiction that has been held over from the case management stage of these proceedings. That issue involves consideration of certain provisions of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligation (hereafter 'the Maintenance Regulation').
The issue of jurisdiction comes about because, some five months prior to the Applicant issuing her application for, inter alia, the enforcement of the maintenance provisions of the order of 13 October 2011, the Respondent issued an application in the Italian court to vary the maintenance provisions of that order. Within this context, the Respondent submits that the court is obliged to stay that part of the Applicant's application for enforcement that relates to the maintenance provisions contained in the final order.
In her statement dated 19 August 2015 in support of her application for enforcement, the Applicant appeared to acknowledge that the English court may wish to stay these proceedings pending the Italian court determining the issue of jurisdiction. Whilst solicitors were on the record for the Applicant, the Applicant agreed on 8 November 2016 to an adjournment of her application generally with liberty to restore on 14 days notice pending the conclusion of the Italian proceedings. However, the Applicant, now acting in person, thereafter sought this final hearing notwithstanding that the question of the jurisdiction of the Italian courts remains outstanding.
Within this context, at the outset of this hearing both parties agreed that the question of a stay raised by the Respondent needed to be dealt with before the court came to the Applicant's substantive application for enforcement of the final order in circumstances where the Respondent contends that this court was obliged by the terms of Art 12 of the Maintenance Regulation to stay the Applicant's application to enforce the maintenance provisions of the order pending the Italian court determining the question of its jurisdiction or, in the alternative, should exercise its discretion under Art 13 to stay that element of the Applicant's application. The Applicant submits that the proceedings in Italy do not fall within the terms of Art 12 of the Maintenance Regulation, that it is the English court that has jurisdiction to hear the entirety of her application and that the English court should now do so.
Having heard submissions from the Applicant and on behalf of the Respondent, I granted a stay of that part of the Applicant's application for enforcement that relates to the maintenance provisions contained in the final order with reasons to follow. I now set out my reasons for doing so.
In addition to seeking to enforce the maintenance provisions of the order of 13 October 2011, the Applicant's application for enforcement seeks to enforce certain other provisions of the order relating to the distribution of capital. As at the outset of this hearing, and in summary, the provisions that were still the subject of dispute were as follows:
i) A provision recording that the Respondent would take what steps were necessary to register a charge against the property of third parties to whom the Applicant and the Respondent had agreed to loan certain monies, which charge would provide for the amount secured to be repaid in equal shares to the parties.
ii) An undertaking by the Respondent to pay or cause to be paid an additional £100,000 into a school fees fund for the children of the family.
iii) An undertaking by the Respondent to hold two investment funds on trust for himself and the Applicant and, on the receipt of payments, to account to the Applicant for 50% of the receipts net of tax.
iv) An undertaking by the Respondent to assign to the Applicant his interest in a Zurich policy or, if this was not possible, to pay to the Applicant the value of the policy at a time to be agreed between the parties.
During this hearing, certain of these matters have become less contentious or have been conceded by the Applicant, leaving only one issue for determination by the court. I also set out in this judgment my conclusions in respect of the one matter that remained in dispute at the end of the hearing, together with my reasons for reaching those conclusions.
BACKGROUND
The background to this matter can be stated relatively shortly. The parties married in 1992. On 23 September 1996, the Applicant gave birth to twins, S and C. The parties separated in August 2009.
On 11 August 2011, the parties entered into heads of agreement with respect to the matrimonial assets and on 13 October 2011, as I have already observed, District Judge White approved a consent order agreed between the parties embodying the terms of their agreement.
The overall scheme embodied within the consent order provided for the division of the capital assets (amounting to a little under £7.5M) and the payment by the Respondent to the Applicant of continuing maintenance. The order provided, inter alia, for the Applicant to receive a little over half of the capital assets and global maintenance of £84,000 per annum with provision for a top-up if the Respondent's income reached a specified level. The order also provided for the establishment of a school fees fund for the children. For the purposes of the application currently before this court, it is important to highlight the following particular aspects of the final order. I agree with the submission of Mr Molyneux that certain elements of the order are unhappily drafted.
In relation to global maintenance, the final order of 13 October 2011 contained the following provisions:
"With effect from 1 September 2011 the Respondent will pay to the Petitioner global maintenance for her benefit and the benefit of her children as follows:
(a) £84,000 per annum payable monthly in advance. Such payments shall be made with effect from 1 September 2011 with the first payment (for two months) to be made on 1 October 2011. Payments shall end on:
(i) The death of either the Petitioner or the Respondent; or
(ii) The petitioner's re-marriage; or
(iii) A further order terminating payments.
(b) On the "variation date" which will be on the date of the payment due in October 2012 and at yearly intervals thereafter the periodical payments set out in E2a above shall stand varied automatically. The change in payments shall be the percentage change if any between the UK consumer prices index for the date 15 months before the date of the first variation and the UK consumer prices index for the date 3 months before the variation date.
(c) With effect from 1 January 2012, the Respondent will pay additional periodical payments to the Petitioner equal to 50% of the Respondent's income (to include all payments from employment, advisory/consultancy fees, participatory interest or other income generated from professional or investment activities but not receipts from liquidation or other disposal of assets or from capital appreciation of assets or earnings from investments) in excess of €200,000 up to a cap of €500,000, such income receipts to be calculated on a rolling three-year basis in accordance with recital B10 ("the further share"). The further share will be accounted for on 15 July and 15 January each year commencing in July 2012 and paid (if any money is due) within 30 days. For the avoidance of doubt the first payment in respect of the further share (if any) will be made on or before 15 August 2012.
(d) On the "further share variation date" which will be the date of the payment due in January 2013 and at yearly intervals thereafter the figures for the Respondent's income and the income cap set out in E2(c) above shall stand varied automatically. The change in the said figures shall...
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