G (Applicant (former husband) v G (Respondent (former wife)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Bodey |
| Judgment Date | 06 July 2015 |
| Neutral Citation | [2015] EWHC 2101 (Fam) |
| Docket Number | Case No. FD14F00345 |
| Court | Family Division |
| Date | 06 July 2015 |
[2015] EWHC 2101 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Before:
Mr. Justice Bodey
(In Private)
Case No. FD14F00345
Mr Horton appeared for the former husband, Applicant on this application but Respondent in the substantive proceedings.
Mr Amos QC and Miss Younis appeared for the former wife, Respondent on this application but Applicant in the substantive proceedings
[ Judges note: on discussion with Counsel, it was agreed that my Clerk and I would produce this Judgment to save delay and expense. This version is therefore the official version and no application need or should be made to the transcribers for any other transcript].
A. INTRODUCTORY
This is a former husband's application to dismiss or stay an application issued by the former wife on or about 25 th April 2014 under the Trusts of Land and Appointment of Trustees Act 1996 (" TOLATA"). By that application, the wife seeks an order for the sale of a property in West London which is held in the parties joint names and for the equal division of the proceeds. Although the parties are divorced (following divorce proceedings in France) I will refer to them for convenience as "the husband" and "the wife". I will call the subject property "the London house".
The husband has been represented by Counsel Mr Horton and the wife by Mr Amos QC with Ms Younis. Each has put in a main Skeleton Argument together with a supplemental Skeleton Argument and I have heard their respective oral submissions. I have read a lever arch file or more of documents. The case has been strenuously argued. The husband asserts (for reasons I will come to) that the wife is 'forum shopping' in this jurisdiction. The wife asserts that he is 'filibustering' so as to put off any decision about the London house by insisting that its future should be determined in Poland. Many points have been argued, all of which I have taken into account; but I do not propose to comment on them all, merely those which are most important in reaching a determination.
The issues may be summarised as follows:
(a) Was the husband domiciled in England for the purpose of Article 2 of Council Regulation (EC) No. 44/2001 (' Brussels I') on 25 April 2014, when the wife issued her TOLATA application? If not then, subject to the questions raised at (b) and (c) below, the English Court does not have jurisdiction.
(b) Does the wife's application have as its object rights in rem? If so, then by Article 22 the English Court as the Court of the Member State in which the property is situated would have exclusive jurisdiction; but if not, and if the object of the wife's application is rights in personam, then Article 22 would not apply to give the English court jurisdiction.
(c) Is the husband being sued as a trustee or beneficiary of a trust created by the operation of a statute? If so, then by Article 5(6) he may be sued in the courts of the Member State in which the trust is domiciled.
(d) If the wife succeeds under sub-paragraph (a) or (c) above, then did the parties 'prorogue' jurisdiction to the Polish court by virtue of an agreement in December 2013/January 2014? This issue about prorogation does not arise if the wife succeeds under sub-paragraph (b) above, because if her application has as its object rights in rem, then jurisdiction under Article 22 is exclusive to the court of the Member State where the property is situated (ie England) (Article 23(5)).
(e) Does the English court have a discretion to stay the wife's TOLATA application under Article 28 on the basis that the proceedings here and in Poland (which I will mention in a moment) are 'related actions'?
B. BRIEF BACKGROUND
The parties were married in 1985 and have three children, now all in their twenties. Both parties are now in their 50s. In 1990, the parties purchased the London house in their joint names. It appears that it was either to be their home, or else an investment property. In the event they never lived there.
In 1990, the family moved to Poland. The London house was split into flats and rented out for the next 10 years between 1991 and 2001.
In 1993, the parties acquired a second home in the south of France ('the French house'). Five years later, in 1998, the wife left Poland and moved to the French house. The following year, 1999, the husband purchased a flat in Poland ('the Polish flat').
In 2001 the parties separated. The wife remained in the French home. The husband's place of residence thereafter is a matter of strong disagreement between the parties. The husband says it has been in England and the wife says it has been in Poland. That same year, 2001, divorce proceedings started in France, which concluded in 2013.
In 2006, the wife and youngest child lived in Poland for one year (separately from the husband). This is significant, because it founds jurisdiction for the Polish court to hear proceedings between the parties pursuant to a Polish-French agreement dated 5 th April 1967.
In April 2010, the husband commenced proceedings in Poland for (a) the establishment of separation of the marital estate (including the London house) as from 31 July 1998 and (b) an unequal division in his favour of their world-wide assets. In October 2010 the Polish court rejected the wife's challenge to the Polish court's jurisdiction.
On 26 October 2011, the wife 'severed the joint tenancy' in respect of the London house. Since then, under English law, the parties have been tenants-in-common. Polish law does not recognise this 'severance' as having any legal effect.
On 13 December 2011, the Court of Appeal in the south of France ordered that the husband do pay 250,000 euros to the wife as 'prestation compensatoire'. The husband appealed (see below).
On 26 June 2012, the District court in Poland gave judgment separating the marital estate as from 26 April 2010, but not as from 1998 as sought by the husband. The husband appealed against that choice of date. On 22 November 2012, the Regional court in Poland dismissed that appeal. The husband appealed that decision to the Polish Supreme Court (see below).
On 1 July 2013, the husband issued a further application to the District court in Poland. By it he seeks (in summary) a 90/10 division in his favour of the joint estate. It is the application said on his behalf to be a 'related action' and (if the wife has otherwise established the English court's jurisdiction) to justify a discretionary stay of the TOLATA proceedings.
On 10 July 2013, the Supreme Court in France dismissed the husband's appeal against the French court's order of 13 December 2011 (above). The divorce in France therefore became effective, as did the requirement that the husband must pay the wife the 250,000 euros 'prestation compensatoire' already mentioned.
By December 2013, the husband had not fully paid that sum of 250,000 euros. A debt collector, Mr W, was instructed on the wife's behalf to get the money in and he set about doing so. There was an exchange of letters between him and the husband's solicitors, to which I will come in part F. It is said by the husband to amount to an agreement to prorogue any proceedings in relation to the London house to the Polish court for determination. In February 2014, the husband paid the then outstanding part, some 173,000 euros, of the 250,000 euros 'prestation compensatoire'.
On 25 April 2014, the wife's TOLATA claim was issued in London.
On 28 May 2014, the Supreme Court in Poland dismissed the husband's appeal against the order of the Regional court dated 22 November 2012 (above) about the date for the separation of the parties' joint estate. The date for such separation of the joint estate was thus confirmed as being 26 April 2010.
On 9 June 2014, District Judge Aiken transferred the wife's TOLATA application to the High Court. On 4 July 2014, the husband issued his Summons for that application to be dismissed or stayed (being the Summons to which this Judgment relates).
On 7 July 2014, the Polish District court dismissed the husband's application dated 1 July 2013 (above) because it held that he had breached the equivalent of an "unless order" made in June 2014. The husband appealed. On 8 December 2014, the Polish Regional court allowed that appeal, reinstating his application.
On 9 February 2015, the District court in Poland repeated aspects of the Regional court's judgment of 8 December 2014, particularly to the effect that the Polish court was dealing with the Polish flat and with moveable items in Poland "…to the exclusion of the properties located in [France and] London". It required the husband to indicate the precise properties in Poland which he wished the Polish court to deal with, not being properties covered "…. by any proceedings held before appropriate authorities in France or England". Mr Horton says that the husband complied with that order.
C. WAS THE HUSBAND DOMICILED IN THIS JURISDICTION AS AT 25 APRIL 2014, THE DATE OF ISSUE OF THE WIFE'S TOLATA APPLICATION?
Unless the case is within Article 5(6) and/or Article 22 of Brussels I (both discussed below) the answer to this question has to be 'Yes' before the English court has jurisdiction over the wife's TOLATA application. This is because Article 2 provides:
"Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State".
Paragraph 9 (2) of Schedule 1 of the Civil Jurisdiction and Judgments Order 2001 states that:
"…. an individual is domiciled in the United Kingdom if and only if (a) he is resident in the United Kingdom and (b) the nature and circumstances of his residence...
To continue reading
Request your trial
-
Magiera v Magiera
...proceedings. 6 I will not seek to summarise Bodey J's judgment further here. It can be found on bailii.org identified as G v G [2015] EWHC 2101 (Fam) and is extremely clear, dealing with the various arguments that were advanced before the judge and also with the factual background to the c......