Elena Vasilyeva v Boris Shemyakin
| Jurisdiction | England & Wales |
| Judge | Mr Justice Williams |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWHC 932 (Fam) |
| Docket Number | Case No: ZC18P01426/FD18F00089 |
| Court | Family Division |
| Date | 16 April 2019 |
[2019] EWHC 932 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Williams
Case No: ZC18P01426/FD18F00089
(Part III MFPA: Substantial Ground)
Nigel Dyer QC (instructed by Levison Meltzer Pigott) for the Applicant
Richard Harrison QC (instructed by Vaitilingham Kay) for the Respondent
Hearing dates: 26th – 27th March 2019
Approved Judgment
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.
This judgment was delivered in public. The judge has given leave for this version of the judgment
Elena Vasilyeva applies pursuant to section 13 of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) for the leave of the court to apply for financial relief in England and Wales. Leave may only be granted if there is a substantial ground for the making of an application for financial relief. The applicant is represented by Nigel Dyer, QC. The respondent to the application Boris Shemyakin opposes the grant of leave. He is represented by Richard Harrison, QC.
Background
The applicant and the respondent are Russian in origin. They married in Moscow on 26 April 2002 and spent the majority of their married lives in Moscow. Their daughter Vasilisa Shemyakina was born in Moscow on 22 January 2005.
In 2011 the respondent was arrested on suspicion of fraud on the Bank of Moscow. I'm not aware of the detail of the allegations or the sums involved, whether he has been charged, convicted in his absence or sentenced. However it seems to be agreed that if he returned to the Russian Federation it is likely that he would be incarcerated. On 29 September 2011 he came to the UK and claimed political asylum. He has remained here to this day. The applicant and their child remained in Moscow although visited the respondent in London during school holidays. This continued until 2014. On 21 February 2013 the respondent was granted asylum in the UK. Again I am not aware of the basis of this but self-evidently the Home Secretary considered that the respondent had a well-founded fear of persecution. Subsequently the husband was granted indefinite leave to remain. I believe he remains a citizen of the Russian Federation. In 2014 the applicant and child were granted visas on the basis of their being dependents of the husband: the Cafcass report refers to a family reunion Visa. At some point the husband's older daughter also moved to live with him in London. There is a dispute between the parties as to the extent to which the wife ever lived in London; it seems her passport shows that in 2015 she spent 96 nights in the UK and in 2016 48 nights. The wife spent time in Russia as well as in Tenerife where she was seeking to establish residency.
In September 2016 the marriage broke down and the parties separated. The applicant left London and, I believe, moved to Tenerife. She has spent almost no time in London since. I am not sure of her Visa status now. The respondent and the child remain living in Notting Hill, along with the respondent's adult daughter from an earlier relationship. The wife has seen very little of Vassilisa since 2016. The parties' daughter holds a very negative view of her mother and a very positive view of her father. Vassilisa said she believes that her mother has only brought an application to spend time with her because she wishes to secure a right to live in the UK and to seek financial support. The Cafcass officer considered that the child's views were essentially her own.
On 19 May 2017 the respondent issued a divorce petition in the Moscow court. It does not appear that the question of divorce proceedings had been discussed between the parties or by lawyers acting on their behalf in advance of this. The applicant's Russian lawyers became aware of this on 26 May 2017. On 8 June 2017 the wife's issued a divorce petition in the Central Family Court and this was served on the respondent in London. The wife's petition was founded jurisdictionally upon the habitual residence of the husband.
On 19 June 2017 a hearing took place in the Moscow court. Both of the parties' lawyers were present. The case was adjourned to allow for a reconciliation period.
On 22 June 2017 the applicant issued a Form A in the Central Family Court and applications for maintenance pending suit and a legal services order. On 30 June 2017 the applicant applied for a ‘ Hemain’ injunction and on 5 July 2017 at an ex parte hearing Mrs Justice Parker accepted an undertaking from the respondent not to bring forward or accelerate the hearing in the Moscow court. It seems clear; indeed it was effectively accepted by Mr Harrison, that the main concern of the parties was not their status but rather the financial consequences that would follow from a divorce. The ‘ Hemain’ application was listed at risk on 17 July 2017; so 2 days before the proposed hearing in Moscow.
In the wife's statement in support of her application she said that the family had lived an extremely comfortable life in Russia although the husband was always very secretive about his financial affairs. She said at one point he had admitted his wealth was in the region of US$150 million. She set out some of the assets that she was aware of saying ‘ I know of several properties owned by Boris, and of numerous corporate structures, but little of the detail. I am aware of the following, and of this being only a very small fraction of his total assets:’
There followed a list of properties and corporate interests. The wife also set out her own property and assets. Within the assets that the wife identified are most of the properties and shareholdings which subsequently appear in the husband's statement of claim. Missing are the cash sums and the interests the husband had in 2 BVI companies.
In the husband's statement in response he says that the wife has grossly exaggerated the extent of his wealth and says he is worth some £3 – £4 million. He says that he is not able in the short time available to provide the court with full disclosure of his assets but that he fully intends to do so at the appropriate time. He deals with the list of assets that the wife had identified and speculates that she had identified some of them through a company search. He says that many of the companies identified are old start-ups which failed. He produced a statement from his Russian lawyer which addressed the current status of many of the legal entities identified by the wife and the husband's position in relation to various properties.
On 17 July 2017 Mrs Justice Roberts made the Hemain injunction which restrained the husband from taking any steps whether by himself or through a third party to prosecute or progress his petition in order to obtain a divorce. He was ordered to instruct his Russian lawyer to take steps to adjourn or suspend the Moscow proceedings. It is said on the husband's behalf that at that hearing Mrs Justice Roberts made clear that the arguments on forum conveniens were by no means all one way. Thus Mr Harrison argues that there was no reasonable expectation that the wife could have had that she would have been able to pursue her Form A to a final hearing.
The hearing in Moscow on 19 July was adjourned but on 27 July 2017 a further hearing took place and a decree of divorce appears to have been granted. There is a dispute between the parties' Russian lawyers as to how that came about. The husband asserts that he complied with the order of Mrs Justice Roberts and he says that he instructed his Russian lawyers to adjourn or suspend the Russian proceedings and that they made written and oral applications in order to further that aim. The wife's Russian lawyer states in a witness statement that the position adopted by the husband's lawyer forced the judge to take a decision on the divorce. I am not entirely sure what this involved but it seems to be an assertion that whilst perhaps appearing to comply with the order, the husband's lawyer took a technical position which was bound to lead to the judge granting a divorce. There is considerable disagreement between the parties' Russian lawyers over a range of issues and there is no way those issues could be resolved (to the extent that they have to be resolved) without far more detailed exploration than was possible in the context of this hearing. It is a feature of the case before me that it is (certainly on the evidence available to me) extremely difficult, indeed potentially misleading to seek to draw parallels with English law, procedure and practice.
On 3 August 2017 — thus within a week of the divorce — the respondent issued a financial application in the Moscow court [C298]. In answer to my query whether there was some clock ticking against him which required the husband to issue the application I was told that there was not. Indeed it seems to emerge from the evidence of the Russian lawyers that an application relating to finance or property can be made at any stage. It is the wife's case that this was further evidence of the husband taking steps in Russia to frustrate her ability to pursue a financial remedy application in the English court. The husband's case is that he simply wanted to put in train a process which was simple, formulaic and low-cost in order to resolve issues relating to matrimonial property. Given the absence of any time limit counting against him there may be some force in the wife's submission although of course I cannot determine the husband's motivation without hearing evidence which is not possible within this hearing. The letter which emerged from the husband's English solicitors after the completion of the...
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