Lamagni v Lamagni
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRITT,LORD JUSTICE HUTCHISON |
| Judgment Date | 07 April 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0407-9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FC3 94/7245/F |
| Date | 07 April 1995 |
[1995] EWCA Civ J0407-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Hollis J)
Before: Lady Justice Butler-Sloss Lord Justice Morritt Lord Justice Hutchison
FC3 94/7245/F
MR. C. CLERK appeared on behalf of the Applicant.
(AS APPROVED)
7th April 1995
LORD JUSTICE BUTLER-SLOSS: This is an appeal from the decision of Hollis J on 3rd October 1994 in which he refused the application for leave to apply under section 13 of the Matrimonial and Family Proceedings Act 1984 by a wife married to an Italian, with a divorce in Belgium, who wished to proceed for financial relief in England. The long and complicated history to this case, bar only a few facts, is not necessary to consider on the appeal which comes to this court with the leave of the Judge.
The parties were married in England in 1967, the wife being English and the husband Italian. There are three children of the family, all of whom are over 18. The parties lived both in Italy and Belgium, and they separated in Belgium in September 1980. The wife took proceedings in England and the husband took proceedings in Belgium. The wife obtained a decree absolute in April 1982 without the knowledge that the Belgian court had granted a decree absolute, or a similar order, in Belgian divorce proceedings on 18th December 1981. The consequence of that is that the Belgian order takes precedence.
The marriage was dissolved in Belgium in 1981 and consequently there was no marriage to dissolve in April 1982. It also has the consequence that the Matrimonial Proceedings Act 1973, in its ancillary relief jurisdiction, does not apply to this family and, being a foreign decree of divorce, the only way in which a wife or a spouse can obtain an order for financial relief after divorce is under the Matrimonial and Family Proceedings Act 1984. Technically, this is an application which is covered by the 1984 Act and the wife has a right to apply this court subject to the provisions of it. But first there is a requirement for leave. The Act, section 13 states:
"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 the court, and a court shall not grant leave unless it considers that there is a substantial ground for the making of an application for such an order."
In looking at whether or not leave of the court should be given in such a case, the court has to have regard to the duty of the court to deal with the case if leave is given. It has been held in this court that it is appropriate to look at the duties of the court if leave is given under section 16, and the court has to consider whether or not it is appropriate to make such an order in England and to have regard to a number of matters, of which section 16(2)(i) is one, regarding the length of time which has lapsed since the date of divorce, annulment or legal separation. In this case Hollis J, having set out the facts, and in particular that the husband has returned to Italy and retired from his civil service occupation, pointed out the extraordinary delay from the date of decree absolute in December 1981. It appears (and the Judge accepted) that the wife did not know of the decree absolute in Belgium for a considerable period of time. It is not entirely clear when she did first know about it. He asked himself the question:
"Should I give leave for her to issue proceedings now to see whether she can succeed in obtaining anything from the husband in Italy?
It seems to me extremely unlikely that she would succeed because of the delay."
He then pointed out that, so far as income is concerned, she is on income support and subsequently any contribution from the husband would decrease her benefits. That does not of course take into account the public issue that any income from the husband would decrease the burden...
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