Lockwood v Greenbaum
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWHC 845 (Fam) |
| Court | Family Division |
2022 April 6; 13
Marriage - Financial provision - Foreign decree - Marriage dissolved by foreign court - Foreign court ordering financial provision for wife - Wife applying to English court for financial relief - Judge refusing permission on finding no substantial connection with England - Correct test for granting permission to make application - Whether appropriate to grant permission -
The husband and wife, who had dual New Zealand and English citizenship, were married in New Zealand in 2006 but thereafter lived in England, in a house gifted to the husband by his father, until they located permanently to New Zealand in 2009. On the dissolution of the marriage in New Zealand in 2011 the wife was awarded maintenance but the court was unable to take account of the value of the London property which was outside its jurisdiction. The wife applied, under Part III of the Matrimonial and Family Proceedings Act 1984F1, for permission to make a claim in the English courts for financial provision following an overseas divorce on the basis that the London property satisfied the jurisdictional gateway in section 15(1)(c) of the Act. The judge refused the application on the basis, inter alia, that the test for granting permission under section 13 of the 1984 Act was that the person applying had to show “substantial connections” with England, which the wife had failed to do.
On appeal by the wife—
Held, allowing the appeal, that, in so far as section 13(1) of the Matrimonial and Family Proceedings Act 1984 required a substantial, or solid, ground for making an application for permission, requiring the court to be satisfied that there was jurisdiction under one of the three gateways in section 15(1), there was no dispute that the test in section 15(1)(c) was met in the present case since the husband had a beneficial interest in the matrimonial home in England; that in deciding whether to grant permission to apply the court was required to look at the test in section 16 of the 1984 Act, by considering whether in all the circumstances of the case it would be appropriate for such the order sought to be made, since it would be quite inappropriate to grant permission if there was no chance of a court ever making the order; that the court was required to consider all the circumstances and to have regard specifically to the nine factors set out in section 16(2); that it followed that there was no precondition that the court had to be satisfied that there were substantial connections with England and Wales, connection to the jurisdiction being merely one of the factors to be taken into account and, although listed first in section 16(2), was not given any primacy over the other factors; that, in any event, on the facts of the present case the connections which the parties had with the jurisdiction were considerably greater than the judge had felt them to be; and that, had the test been correctly applied, the application for permission ought to have been granted and, considering the matter afresh, the court would now grant such permission (post, paras 32–39).
APPEAL from Mr Recorder Sirikanda sitting in the Central Family Court
The wife, Barbara Kay Lockwood, applied for permission to make a claim against the respondent, Adam Raphael Greenbaum, in the English courts for financial provision following an overseas divorce pursuant to Part III of the Matrimonial and Family Proceedings Act 1984. On 27 May 2021 Mr Recorder Sirikanda sitting in the Central Family Court refused permission to apply having found on the facts that the parties did not have substantial connections with England as required for a Part III application.
By a notice of appeal dated 13 July 2021 the wife sought permission to appeal on the grounds that the judge had erred in finding that there was a requirement for substantial connections with England before permission could be granted, and had further been erred in saying that it was important for the marital home to have been a part of the fabric of the marriage for many years.
The judgment was delivered in public and may be reported in full except that the two children of the parties may not be identified other than as they are referred to in the judgment.
The facts are stated in the judgment, post, paras 4–28.
James Finch (acting under the Public Access Scheme) for the wife.
Lucy Stone QC (instructed by Kingsley Napley) for the husband.
The court took time for consideration.
13 April 2022. MOOR J handed down the following judgment.
1 I have been hearing an appeal from an order made on 27 May 2021 by Recorder Sirikanda sitting at the Central Family Court. Sir Jonathan Cohen gave the appellant permission to appeal on 10 August 2021. The appeal was heard by me on 6 April 2022.
2 Sir Jonathan’s order does not specifically refer to the fact that the notice of appeal was several weeks out of time although, by granting permission to appeal, he was effectively extending the appellant’s time to appeal. In so far as I need to do so, I am satisfied that the appellant should have been given permission to bring this appeal even though she was out of time. There have been numerous authorities, over the years, starting with Johnson v Johnson [
3 The history of the litigation between these parties makes very sad and troubling reading. It has undoubtedly done untold damage to them and to their children. I recognise that, in one sense, they only have themselves to blame but I heard the case on the day on which the new “no fault” divorce provisions came into force in this jurisdiction following the Divorce, Dissolution and Separation Act 2020. Whilst extremely welcome, this new law will not end the sort of attritional litigation in relation to ancillary matters, such as financial remedies, seen so vividly in this case, unless the parties recognise that such an approach is entirely destructive, extremely expensive and thoroughly damaging to everyone involved. To date, these parties have not so recognised.
The relevant history4 The appellant, Barbara Kay Lockwood (“Ms Lockwood”) is aged approximately 48. She lives in Cambridge, New Zealand. She was born and brought up in that country and previously worked as a nurse. The respondent, Adam Raphael Greenbaum (“Mr Greenbaum”) is aged 60. He lives in Hamilton, New Zealand but, as I understand it, was born and brought up in this country. He is a surgeon. Both parties have New Zealand and British citizenship. They met in England in 2000 when they were both working in a NHS hospital in Manchester.
5 In around the year 2004, Ms Lockwood stopped working as a nurse and began to study for a dentistry qualification in London. She says that she moved into Mr Greenbaum’s property at 41 Ringmore Rise, Forest Hill, London in September 2004. Mr Greenbaum says that cohabitation there commenced in January 2005 when he also returned to London. The property is a substantial detached property that was gifted to Mr Greenbaum by his father in 1994, six years before the parties met. Ms Lockwood contends that it is worth approximately £1.25m and that it is mortgage free. I do not know if that is accepted but it is clearly a valuable property even in the context of London property prices.
6 The parties married in New Zealand on 9 December 2006 but returned to this country where they continued to live at 41 Ringmore Rise. In August 2007, they moved into rented accommodation whilst works to renovate the property were undertaken. It is said that the cost of these works, and various living expenses of the parties, were funded by a combination of loans from Mr Greenbaum’s mother and payments from his father’s estate.
7 The parties have two children who are now aged 14 and 13. It appears there have been significant disputes between the parties as to the care of the children. They are, however, currently subject to a shared care regime.
8 In August 2009, the parties moved back into the Ringmore Rise property due to the end of their rental tenancy, even though the works were still not entirely completed. In December 2009, they relocated permanently to New Zealand. The exact reasons for this relocation appear to be in dispute but are, in any event, irrelevant to what I have to decide. They have remained in New Zealand ever since.
9 Unfortunately, the marriage broke down in 2011. The parties separated on 25 May 2011 and commenced their destructive litigation that has, essentially, lasted ever since. The marriage was dissolved in New Zealand on 26 August 2013. An interim maintenance order was made there on 11 June 2014 but was set aside following an appeal by Mr Greenbaum on 3 September 2014 due to a calculation error. In February 2015, Judge Riddell made a final order on Ms Lockwood’s application for maintenance. The judge ordered Mr Greenbaum to pay Ms Lockwood capitalised maintenance of NZ$433,000. I am going to work on a rate of exchange of NZ$2 to the pound, although I accept it might not have been the same at the time. At that rate of exchange, the figure would have been approximately £216,500. I have been told that it was calculated on the basis of four years’ maintenance at approximately NZ$8,500 per month. The list of outgoings on which the maintenance was calculated included rental costs. I believe both parties appealed. On 15 April 2016, Justice Woodhouse basically dismissed both appeals but he did reduce the sum slightly to NZ$383,000. On 1 December 2016, the New Zealand Court of Appeal refused permission for a second appeal. Moreover, on 11 November 2016, an application by Mr...
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