Jkn v Jcn
| Jurisdiction | England & Wales |
| Judge | Miss Theis QC |
| Judgment Date | 19 April 2010 |
| Neutral Citation | [2010] EWHC 843 (Fam) |
| Docket Number | Case No: FD09D02340 |
| Court | Family Division |
| Date | 19 April 2010 |
[2010] EWHC 843 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Before: Miss Theis QC Sitting as a Deputy High Court Judge:
Case No: FD09D02340
Mr Philip Marshall and Mr Peter Newman (instructed by Withers Solicitors) for the Petitioner
Mr Timothy Scott QC and Mr Deepak Nagpal (instructed by Harbottle & Lewis Solicitors) for the Respondent
Hearing dates: 15 th to 19 th March 2010
Judgment Approved by the court for handing down
This judgment was handed down in private on 19 th April 2010. It consists of 56 pages and has been signed and dated by the Deputy Judge. The Deputy Judge hereby gives leave for it to be reported on the strict understanding that in any report no person mentioned in the judgment may be identified by name except for (a) the advocates and the solicitors instructing them and (b) Mr Sheresky and Mr Mantel.
Miss Theis QC:
1. This matter concerns the application made by JCN (the Respondent husband) for a stay of the divorce proceedings issued in this jurisdiction by JKN (the Petitioner wife).
2. The wife issued her divorce petition here on 20 th May 2009, the husband filed an acknowledgement of service on 11 th June 2009 confirming that he did not intend to defend the proceedings here but stating that New York was the appropriate forum. On the 5 th June 2009 the husband issued a summons for divorce proceedings in New York and on 12 th June 2009 the husband issued his application to stay the divorce proceedings here to allow the New York proceedings to proceed.
3. At the same time as the wife issued her divorce petition here she sought, and obtained, a freezing order relating to the husband's assets. She also issued her Form A seeking financial provision and an application for maintenance pending suit. In response to the husband's divorce proceedings in New York and his application for a stay the wife issued an application for a Hemain injunction restraining the husband from taking any further steps in the New York proceedings.
4. This application potentially raises an important legal issue that I am asked to determine; namely, whether this court is prevented from exercising its discretionary jurisdiction to stay the English divorce proceedings issued by the wife by the operation of Article 3 of Council Regulation (EC) No 2201/2003 (hereafter “BllR”) and the case of Owusu v Jackson C-281/02 [2005] All ER (D) 47; [2005] ECR 1—1383 (hereafter “Owusu”).
5. This is an issue that has been the subject of some considerable academic debate and comment. I am told that whatever my decision there is likely to be an appeal and possibly a referral to the ECJ.
6. The case was listed before me on 15 th March 2010 with a 5 day time estimate (it was released to me by a Judge of the High Court for the purposes of avoiding it coming out of the list). The first day was a reading day. I heard the oral evidence of the parties and, by video link, their respective experts who are based in New York. The documentation in the case is voluminous, running to some 6 lever arch files with an additional 3 lever arch files of authorities. I have had the benefit of extremely full opening and closing documents, produced through the industry of both legal teams, for which I am very grateful. I have read the court bundles and considered the authorities and academic material I have been referred to. The court had the benefit of daily transcripts during the hearing of both the oral evidence and submissions.
7. It is a matter of some regret that the combined legal costs in this case have reached a staggering £900,000, even at this preliminary stage (this is the husband's estimate and includes the stay application, the freezing order application and the application for maintenance pending suit). This is not a big money case; the assets are about £7m (less tax) and the husband's net income in the region of £1m (including bonus). I would sincerely hope that, despite the interest in the legal issue I have outlined, once this jurisdiction issue has been determined serious attempts will be made to agree the financial aspects before there is any further damaging erosion of the relatively limited available assets through increased legal costs, which are already so alarmingly high.
Background
8. Much of the essential background is not in dispute. Both the husband and wife are American by origin; both having been born and brought up in New York. The wife is 40 years and the husband 43 years. They married on 6 th July 1996. By that stage the husband had moved to London to take up a post with M Bank, which he started in May of that year. Following their marriage, the wife joined the husband in London and they lived here until 2008.
9. They have four children; two boys (9 and 8 years old respectively) and two girls (6 and 3 years old respectively). Prior to the birth of the children the wife worked for various news organizations. She did not return to work after the birth of her first child. The children were all born in London and, once of the relevant age, started attending school here.
10. The husband and wife applied for, and were granted, British citizenship and British passports in 2004. The children have dual UK and US nationality from birth.
11. During the whole of their time here the family lived in a number of rented properties in London. They considered purchasing a property here but, in fact, remained in rented accommodation.
12. The husband left M Bank in 2000/2001 and co-founded a mortgage intermediary based in London. In 2001 the husband joined D Bank as Commercial Real Estate Director for Europe. He continues to work for the Bank, albeit now in a different role.
13. The husband travelled extensively with his work. The pattern appears to have developed that the parties would return to New York each year during the school holidays, usually the summer holidays, rent holiday accommodation and visit family and friends, whom they sometimes stayed with. The wife's parents live in a County in New York State, her brother lives in New York and her sister in Los Angeles. The husband's parents and brother also live in New York State. At one stage they considered purchasing a property in New York as a holiday home to use during these holiday visits, but did not proceed with this plan.
14. It is clear from the evidence I read and heard that the marriage was in some difficulty by 2007. It transpired during the oral evidence that the parties (separately or together) had had marriage counselling and/or therapy for a number of years, either based here or by telephone or in person during holiday visits to New York. In her oral evidence the wife referred to marital therapy in 2005 in London and some that took place in 2003. As the wife said in her oral evidence, ‘I think [JCN] acknowledges in his affidavit that we went through rough patches, generally probably about the births of the babies, there is a lot of care involved, a lot of time. During none of these times did we ever up-stick at that point and leave London though.’
15. The husband states in his written evidence that the wife requested periods of separation in the latter part of 2007 and that she said she expected that separation to end in a divorce. The wife said this is taken out of context, it was a general discussion about separation that could end in divorce; it was not a discussion about their circumstances. It was suggested to the wife that at this time she was feeling ‘semi-detached’ from the marriage; she said she felt there was something wrong but she ‘could not put my finger on what.’ It was suggested to her that seeking to meet an old college friend without informing the husband was symptomatic of the poor state of the parties relationship, she denied that.
16. It was around this time (late 2007/early 2008) that the parties were considering whether to move to live in New York. There is a dispute as to who took the lead on this. It is the wife's case that she was tricked by the husband into returning to live in New York. She says if she had known that the husband was continuing his relationship with MD she may have made a different decision. He told her the relationship was over. She said in evidence that she hoped the move back to New York would be with a view to them getting back together; she said the husband had told her that he would secure a job that would be based in New York by no later than February 2009. She said if she had known about the continuing relationship between the husband and MD the position may have been different; she may well have stayed here and not disrupted the children's education. She did not accept that she would have moved back anyway, that the children were moving schools anyway and she sought the support of her family who lived in New York.
17. The husband's case on the move back to New York was that it was the wife who was pressing to return to New York, she had never really settled here and they had lived, what he described as an expatriate life. According to him, his wife had pressed him to get a transfer within the bank, or another job, based in New York.
18. During this hearing Mr Scott QC, on behalf of the husband, sought to present a more moderate position regarding the move to New York. He referred to various emails (relating to proposed schooling for the children) where he said the husband demonstrates that he was equivocal about the move, was not pressing for it to happen and what the emails show in reality are two parents seeking to find the best solution for the education of their children.
19. In August 2007 it is common ground that the husband met MD in Moscow whilst on business, and soon thereafter began a relationship with her. The wife remained in ignorance of the existence of this...
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