Mrs T v Mr T
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Moylan |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWHC 3776 (Fam) |
| Docket Number | Case No. FD10F00562 |
| Court | Family Division |
| Date | 21 December 2010 |
[2010] EWHC 3776 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Moylan
Case No. FD10F00562
MR. C. HALE (instructed by Withers LLP) appeared on behalf of the Applicant (Wife).
MR. M. GLASER (instructed by Bircham Dyson Bell LLP) appeared on behalf of the Respondent (Husband).
HTML VERSION OF JUDGMENT
This hearing concerns an application dated 16th July, 2010 made by a wife, or former wife, for an occupation order under the Family Law Act 1996 in respect of a property in West London ("the property"). The wife contends that the parties are not validly divorced whilst the husband contends that they are.
By an interlocutory order made by the French Court of Appeal on 16th December, 2010 it was decided that the wife's appeal against a divorce order made by the Family Judge of the District Court of Paris on 3rd February, 2009 was in time. The husband had sought to procure the dismissal of the wife's appeal on the basis that it was out of time. The French Court of Appeal decided that her appeal is in time and accordingly is admissible and has adjourned the appeal for further orders and directions to a date in the early part of next year.
It appears from previous evidence provided in the proceedings before me by French lawyers, instructed respectively on behalf of the wife and of the husband, that as a result of the appeal being declared admissible the parties remain married. That certainly is the effect of the opinion expressed by the wife's French lawyers. The husband's French lawyers do not specifically address the issue of the status of the marriage if the appeal is found (as it has been by the French court) to be in time.
I propose accordingly to refer to the parties during the course of this judgment as husband and wife.
The wife has been represented throughout this hearing by Mr. Hale. The husband was represented by Mr. Singleton, QC and Mr. Brazil at the first part of this hearing which took place as long ago as 8th October, 2010. He was represented at the adjourned part-heard hearing on 15th November and today, 21st December, by Mr. Glaser.
In this judgment I am determining only the issue raised by the husband of this court's jurisdiction to hear the application under the Family Law Act brought by the wife. I am not determining the substantive merits of the application. By agreement of the parties, I am determining the jurisdictional issue on submissions only, having heard no oral evidence.
The hearing has followed what can only be described as an unsatisfactory course. It was listed for one day on 8th October. Having regard to the extensive material and numerous points relied upon by both parties this time estimate, which had been agreed by both parties, was clearly inadequate. By the end of that day Mr. Singleton was only part-way through his submissions in response to the submissions which had been made by Mr. Hale. I was sitting on circuit for the next three weeks and because of this, and pressure of other work, the hearing was adjourned to the first available date, being 15th November, 2010. On this occasion, as I have said, the husband had dispensed with the services of Mr. Singleton and Mr. Brazil and was represented by Mr. Glaser, who had appeared for him at, certainly, a previous hearing during the course of these proceedings.
On 15th November I was faced with a development which derailed that hearing. The development was the commencement of possession proceedings by a company ("WEL"), which company is the registered owner of the property.
The possession proceedings had been commenced in the West London County Court on 26th October, 2010. This in itself might not be a surprising development. At the first hearing on 4th November the proceedings were transferred by the West London County Court to be listed before me on 15th November. What was in some respects surprising was that it was apparently asserted at the hearing on 4th November that the ultimate owner of WEL is a person called Mr. J T who was said to have become the owner of WEL pursuant to a share sale agreement dated 16th February, 200By that agreement Mr. J T effectively, through a corporate vehicle of his, had bought the shares in a Panamanian corporation which was the owner through intermediate companies of WEL and the property. The purchase price, so it is said, for the shares was $2.4 million. This development was surprising because no mention had been made of any such share sale agreement during the course of the Family Law Act proceedings, which, as I have said, commenced on 16th July, 2010. The husband, in his evidence filed for the purposes of those proceedings had made no mention of this sale.
The wife had been served with a bundle of documents relating to the possession proceedings on Friday, 12th November, 20I gave directions in respect of the possession proceedings and, as result of the delay caused by having to deal with them, Mr. Glaser was unable to commence his submissions in respect of the Family Law Act application until late morning. His submissions developed in a very different way to those which had been made on behalf of the husband by Mr. Singleton. While Mr. Singleton had focused in his oral submissions on the factual background and the Family Law Act, and in particular whether the husband was a person who is entitled to occupy a dwelling house by virtue of a beneficial estate or interest, or contract, Mr. Glaser focused instead on the provisions and effect of what I will call at present Brussels I and Brussels II R. Again, regrettably, time proved inadequate to enable counsel to complete their respective submissions on all the points raised. So, counsel agreed that I should determine in this judgment only the jurisdictional points raised by the husband under Brussels I and Brussels II. Because of the late start on 15th November I was unable to give judgment that day. I again went on circuit for three weeks. The first occasion that I have been able to give judgment is today, 21st December, 20With that preamble I turn to set out some of the history.
The husband is aged 59. He was born in the Lebanon and is also a French citizen. The wife is aged 48 and is an English national. The parties married in 1985 and separated in or about 2006. There is a dispute as to whether the parties finally separated at this date, but in any event the marriage was at an end by 2009. There are two children of the family, now aged 21 and 14. The elder child attends university in London and the younger goes to school in London. At present the elder child is living in accommodation, certainly during the week, provided by the father. The wife says that he also spends periods with her and the younger child, who are currently living at the property as a result, in part, of orders made earlier in these proceedings.
It appears that during the course of the marriage—or certainly the later part of the marriage—the parties' main matrimonial home was in Paris. However, in addition the wife alleges that during the marriage the parties also had homes in Cap d'Antibes in the South of France, in London and in the Lebanon.
The property (in London) was purchased in 1995. The wife contends that the property was also a matrimonial home. The husband contends that the property has never been "the matrimonial home". He contends that he and the family have only sometimes stayed for short periods at the property "when we have been in London for business and/or pleasure". In support of his case the husband has produced a letter, dated 22nd July, 2010, from his French private client lawyer, which states that the parties "have had their principal residence in France … without interruption since their marriage until their divorce was pronounced". The fact that the parties' principal residence has been in France does not of itself mean that the property in West London was not, or could not have been, also a matrimonial home.
The husband instituted the divorce process in France on 26th October, 2006. I will return to these proceedings a bit later in this judgment referring at present simply to the existence of a non-reconciliation order of 5th June, 2007 and a divorce judgment of 3rd February, 2009. The wife, as I indicated at the outset of this judgment, filed an appeal against the divorce judgment on 25th January, 2010.
In September 2007 the wife and the children moved to England. They lived in rented accommodation. At that time the husband was providing the wife with substantial maintenance approaching approximately £400,000 per year. In September 2008 the wife and children moved to a rented Mews property in London. The wife contends that the husband failed to pay all the rent for this property when due, whilst the husband contends that he provided the wife with sufficient monies from which to pay the rent. The husband took over the tenancy of this property for a term of one year from August 2009, the tenancy expiring at the end of August 2010.
There is included in the bundles correspondence between the parties' respective French lawyers dealing with, among other issues, accommodation for the wife and children. In a letter dated 2nd March, 2010 the husband proposes that he will pay rent of €5,000, being the amount he is required to pay as maintenance under the non-reconciliation order. This proposal does not make entire sense to me because as I understand it the husband's case is that the effective order is that of 6th February, 2009, not the non-reconciliation order.
On 7th May, 2010 the landlords of the rented Mews property sent a letter to the wife stating that the rent was in arrears in the sum of £73,500. It was also stated that possession proceedings would be commenced without warning if there was any further...
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