Hewitson v Hewitson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEGGATT,LORD JUSTICE BALCOMBE,Order |
| Judgment Date | 06 October 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1006-1 |
| Docket Number | No FAFMI 94/0755/F |
| Court | Court of Appeal (Civil Division) |
| Date | 06 October 1994 |
[1994] EWCA Civ J1006-1
From order of Mr Justice Wall
Before: Lord Justice Balcombe Lord Justice Butler-Sloss Lord Justice Leggatt
No FAFMI 94/0755/F
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
APPEAL OF RESPONDENT
MR JAMES HOLMAN QC (Instructed by Bower Cotton & Bower, London) appeared on behalf of the Appellant.
MR NICHOLAS MOSTYN (Instructed by Wilkinson Maughan, London) appeared on behalf of the Respondent.
(As Approved)
LADY JUSTICE BUTLER-SLOSS : This appeal has arisen on an issue under the provisions of Part III of the Matrimonial and Family Proceedings Act 1984, ( the 1984 Act). The respondent to the appeal, whom I shall call the former wife, applied ex parte to Wall J under s13 of the 1984 Act for leave to make an application for financial relief under s12. The judge granted the ex parte application for leave on the 17th December 1993. The appellant, whom I shall call the former husband, applied to set aside the grant of leave and on the 24th May 1994 the judge refused to set aside his grant of leave but gave leave to appeal to this court. On the 27th September this court allowed the appeal but reserved its reasons.
The former wife is 58 and Irish. She was married to an American now 69 on the 15th July 1983 in California and divorced from him in California on the 18th December 1987. They had however met in 1977 and cohabited in the USA prior to the marriage. Just before the marriage the former wife signed an ante-nuptial settlement which disclosed that the former husband was a millionaire and the effect of which was to exclude Californian community of property law but gave the former wife an apartment which after the wedding was transferred to her.
The spouses separated in January 1987; the former wife issued divorce proceedings in California and both were throughout represented by lawyers. There was a short failed reconciliation. On the 8th April 1988 a comprehensive agreement was negotiated and became the order of the Californian court. This order included spousal support for a limited period until 1990 and capital payments. The effect of the order was to create a clean break final order between the spouses. The terms of the order were implemented by the former husband. There has been no application to the Californian court to review or vary the order.
The parties from time to time cohabited briefly, never longer than about two months, both in the USA and in England after the former wife came here in 1989. They finally parted in 1992. The former wife's case was that as a result of their continuing association and his remaining in her life she was induced to take financial steps to her detriment upon the promise of the former husband to maintain her for the rest of her life. This he has refused to do and she is now in a parlous financial situation. There is no evidence to the contrary adduced by the former husband.
Before the judge the former wife sought to challenge the original Californian order and also to rely upon the subsequent history in support of her application under the 1984 Act. Wall J decided that she could not seek to reopen the fairness of the Californian consent order and held that if the subsequent events had not occurred he would not have given leave. He was satisfied however that after the divorce the parties had maintained a relationship with the adverse consequences depicted by the former wife and the former husband had, (prima facie), by his conduct incurred fresh obligations and responsibilities towards her and she should be allowed to apply to the English court under the 1984 Act.
Prior to the 1984 Act the English courts had no jurisdiction to grant ancillary relief where the divorce decree had not been granted in this country, even though there was property —often the matrimonial home —within the jurisdiction. Spouses, (generally wives), who were divorced in other jurisdictions in which no financial order had been made were appearing before the English courts in an attempt to bring their financial hardship and the injustice of their position within the ambit of the English law. The increasing problems which these cases raised caused the Law Commission to recommend to Parliament legislation to empower the English courts to entertain applications for financial provision notwithstanding the existence of a prior foreign divorce. Parliament enacted the 1984 Act under which either party to a marriage, which has been dissolved in an overseas country and where the divorce is recognised in England, may apply to the court for an order for financial relief, ( s12). Leave of the court is required by s13 which states:-
"(1) No application for an order for financial relief shall be made under this part of this Act unless the leave of the court has been obtained in accordance with the rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order."
This former wife has complied with the jurisdictional requirements set out in s15 since she is habitually resident in England.
S16 requires the court to consider whether England is the appropriate venue for the application:-
"(1) Before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application."
In s16(2) the court shall in particular have regard to a number of specific matters which it is not necessary to set out in this judgment. Once leave has been given, s17 imports into the 1984 Act the provisions of Part II of the Matrimonial Causes Act 1973 and by s18 the court in exercising its discretion applies s25 of the 1973 Act.
There was considerable argument before the judge as to the meaning of the test to be applied on the leave application. I agree with Mr Holman QC for the former husband that it is not necessary for this court to embark upon a similar detailed scrutiny of the words of the section. As Purchas LJ said in Holmes v Holmes [1989] Fam.47 at page 54 there is no opaqueness in the language. The court in Holmes took into account the criteria set out in s16 and the relevant circumstances in applying the s13 test. It was not necessary to consider beyond s16 since the application was doomed to failure on the issue of jurisdiction. Ewbank J in Z v Z (Financial Provision: Overseas Divorce) [1992] 2 FLR 291 also cast an eye on the matters which would arise under s18 if the application for leave were granted. I entirely agree with the approach of Ewbank J in Z. In considering whether there is substantial ground for making an application the likely outcome of the application, if made, has to be highly relevant.
Mr Holman has submitted to us that the mischief that the Act was designed to redress did not include the case of a foreign court of competent jurisdiction making an order which was neither appealed nor impugned; where the order was final and designed to create a clean break and where the other spouse had fully complied with the order. He argued that thereafter the relationship was one of man and mistress and Part III did not apply. He invited our...
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