Munro v Munro
| Jurisdiction | England & Wales |
| Judgment Date | 19 December 2007 |
| Neutral Citation | [2007] EWHC 3315 (Fam) |
| Docket Number | Case No. LV07D00059 |
| Court | Family Division |
| Date | 19 December 2007 |
[2007] EWHC 3315 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
Civil Justice Centre
1 Bridge Street West
Manchester
M60 9dj
The Honourable Mr Justice Bennett
Case No. LV07D00059
Counsel for the Applicant: Malcolm Sharpe
Counsel for the Respondent: Kevin Reade
JUDGMENT APPROVED BY THE COURT
Number of Folios: 111
Number of Words: 8,024
On 17 January 2007 the wife filed a petition for a divorce against the husband in the Liverpool County Court alleging that the English court had jurisdiction. The husband denies that the English court has jurisdiction to entertain these proceedings. Thus that issue comes before me for adjudication.
It is common ground between the parties whether the English court has jurisdiction is to be decided according to the provisions of Article 3 of Counsel Regulation (EC) 2201/2003 commonly known as Brussels II Revised. That Article provides as follows:
“1. In matters relating to divorce, legal separation or marriage annulment jurisdiction shall lie with the courts of the Member State:
(a) In whose territory:
* the spouses are habitually resident, or
* the spouses were last habitually resident in so far as one of them still resides there, or
* the respondent is habitually resident, or
* in the event of a joint application, either of the spouses is habitually resident, or
* the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
* the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the member state in question or, in the case of the United Kingdom and Ireland, has his or her 'domicile' there;
(b) Of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the 'domicile' of both spouses.
2. For the purpose of this regulation 'domicile' shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.”
Mr Sharpe, counsel for the wife, has submitted that the English court has jurisdiction by virtue of the sixth limb or indent of Article 3(1)(a) and/or by virtue of Article 3(1)(b); that is either that she was habitually resident for at least six months immediately preceding the presentation of her petition and she is domiciled here, or that both she and the husband are domiciled here.
Mr Reade, counsel for the husband, contends that, since the parties moved to Spain in 2003, both parties have not only been habitually resident in Spain but also acquired a domicile of choice in Spain.
Despite the end of the marriage in 2006, despite there being proceedings for its dissolution in England since January 2007 and despite the husband's implicit assertion that the proper jurisdiction for divorce proceedings is Spain, the husband has never sought to bring proceedings there. Despite the order of Mr Justice Ryder of 4 th October 2007, neither party has filed a report from an expert in Spanish matrimonial law stating what law, that is to say English or Spanish, a Spanish court would apply to the determination of financial provision. Nevertheless, Mr Reade has realistically accepted that in the light of the Court of Appeal decision in Moore v Moore [2007] EWCA Civ 361, and in particular paragraph 6 and 67 of the court's judgment, a Spanish court will apply English law. If then I am driven to find that the English court has no jurisdiction to hear the wife's matrimonial proceedings, these parties will remain married and will be unable to resolve their financial differences, despite both accepting that the marriage is at an end. Furthermore, if proceedings are begun in Spain, it is common ground, as I have said, that the Spanish court will apply English law to determine the real issue in this case, which is what financial provision, if any, is to be made by the husband for the wife. The Spanish judge will thus, most likely, need the assistance of expert evidence on behalf of the parties as to what financial provision an English judge would be likely to make, applying English law. The parties would thus not have the most suitable body to decide upon financial provision under English law, namely an English court. This of course is not a criticism of the Spanish court, merely, I would have thought, a statement of the obvious.
The husband told me in evidence that the practical reason why he wants the disentanglement of the assets to be negotiated and/or decided in Spain is because the assets are there and Spanish lawyers can more easily resolve it. He further told me that if the wife's proceedings here are dismissed for want of jurisdiction, he will begin divorce proceedings in Spain. In my judgment this is really not an answer to my question, which I posed at the very beginning of this hearing, which is why the husband is seeking to have the English proceedings dismissed. He accepted that the marriage is at an end and that he wants a divorce. I must say that I have to suspect that, as in Moore v Moore, the husband's attitude may be driven by tactical considerations, namely either to wear down the wife and/or in an expectation that a Spanish judge would award the wife significantly less financial provision than an English judge.
On 5 May 2002 the parties were married in England. The wife was then 40 years old and the husband 49. Each had been married before. In 1981 the wife married Richard Blundell, by whom she had two children, Shez, and Nikki, both now adults. However, at the time of the wife's marriage to the husband in 2002, Shez was 15 and Nikki 12 years old. The wife obtained a decree absolute against Mr Blundell in February 1999.
As for the husband, he had married a girl called Rita by whom he had two children, now in their 30s. He next married Margaret, by whom he has had two children, namely Sean, now aged 22, and Louise, now aged 1At the time the wife and the husband married, Sean was aged 17 and Louise 14 years old. Both parties are and have always been nationals of this country. Both were born and brought up here and until 2003 lived all their lives here.
In 1999 the wife and the husband met. The wife had a furniture business in Liverpool called Monarch Furniture. The wife moved into the husband's home in Canal View, Melling in Merseyside. She rented out a property she owned at 2 Glebe End in Sefton Village.
The husband was interested at that time in three companies, namely City Centre Commercials Limited, Simonswood Properties Limited and Sean Louis Investments Limited. As I understand it, he was the majority shareholder in each.
It is common ground that in February 2003 the parties moved to Spain. Each sold their respective English properties. For the wife the property at Glebe End produced £240,000 net and the sale of her furniture company £245,000 net. The wife says that the husband bought all the issued share capital in Cashmeres of Scotland Limited, a company registered in Gibraltar. She says that the funding of that company amounted to about £1.307 million, of which the husband put in his net proceeds of sale from Canal View, a lump sum from his pension, together with other resources. The wife says she contributed all of the monies from her furniture business and the sale of Glebe End.
According to the wife Cashmeres invested in Spanish properties through a company called Monarch Properties SL, a Spanish company. The latter company, according to the husband, invested in some six properties, including Villa Provencia, number 1, in Sierra Cortina, Alicante, where the wife now lives. That is the address which the wife has given in each of her statements in these proceedings in 2007 of 5 March, 1 August and 18 September.
In 2003 to early 2006 the parties lived in a house at La Nucia. Prior to moving to Spain the parties purchased “off plan” a property at Val de Galerina number 3, Alfaz del Pi in Alicante. They lived at La Nucia and after the separation the husband went to live at Val di Galarina.
In August 2003 the husband purchased in Sean's name a property at 125 Liverpool Road North in Maghull for £115,000. Sean would then have been about 17 or 18 years old and the wife believes, in my judgment correctly, without funds of his own to buy a property. A large extension was built, including a large kitchen and bathroom, all of which was funded by the husband.
In 2004 there was purchased, the wife then believed in joint names, a property in Killala in County Mayo in Ireland.
On 1 October 2005 the husband says he transferred all his shares in the companies to which I have referred, that is City Centre, Simonswood and Sean Louis Investments, to Sean, which, he says, more or less coincided with Sean's 21 st birthday in May 2006.
According to the wife, though this is disputed by the husband, the husband has also, prior to March 2007, purchased properties in Kingsway, Huyton, a house in Skelmersdale, again in Sean's name, and has an interest in Canal Wharf (Blackburn) Limited, a company that owns 56 flats of which Sean is a director. As I have said, the husband told me in evidence that he has no financial interests in England at the present time.
When the parties went to Spain in February 2003, Shez and Nikki came with them. Shez found life in Spain difficult and returned to England after a mere two weeks. Nikki, according to the wife, also found life difficult. In September 2004 she changed schools in Alicante and thereafter went to an English school, but, by July 2005, she did not wish to remain in Spain and returned to...
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