Sareh Kimura Al-Baker v Abdul Amir Al-Baker

JurisdictionEngland & Wales
JudgeMr Cusworth
Judgment Date12 October 2016
Neutral Citation[2016] EWHC 2510 (Fam)
CourtFamily Division
Docket NumberCase No: ZC15D00024
Date12 October 2016

[2016] EWHC 2510 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Nicholas Cusworth QC

(SITTING AS A DEPUTY HIGH COURT JUDGE)

Case No: ZC15D00024

Between:
Sareh Kimura Al-Baker
Applicant
and
Abdul Amir Al-Baker
Respondent

Richard Todd QC And Nicholas Yates (instructed by Vardags) for the Applicant

The Respondent did not appear and was not represented

Hearing dates: 7 th, 10 th–12 th October 2016

Mr Cusworth QC:

1

This has been a long marriage by any standard. The husband, Amir Al-Baker, (now 76) was born in Iraq and the wife, Sareh Al-Baker, (now 71) in China. They married in Japan on 5 June 1969 and separated in the autumn of 2014, so that this has been a 46-year marriage. The wife holds Japanese and Portuguese passports and is entitled to apply for British naturalisation. The husband is an Iraqi national and also holds a Portuguese and a British passport. The parties have three adult children: Mohammed (c.46); Yousif (c.44) and Zainab (c.39).

2

After the marriage the parties lived in Kuwait where the husband worked. The family moved from Kuwait to London in 1987 where they lived until 1994, when they moved to Portugal to enable the husband to work there. However, they retained their home here in London and, thereafter applied for indefinite leave to remain in the UK which was granted. Their home in London, Flat 55, 3–8 Porchester Gate, Bayswater Road, W2, is held in the parties' joint names, but was rented out for a time by the husband. The wife says that she was unaware of this when she returned to London following the parties' separation, and initially had to rent an alternative property in London. The tenancy of Flat 55, 3–8 Porchester Gate ended in November 2015, following which the wife moved into the property, where she remains.

3

The wife issued her petition in England on 6 January 2015 and her Form A followed two days later. The husband filed an Acknowledgment of Service on 27 February 2015 contesting jurisdiction. He says in that document that they have both been habitually resident in Portugal since 1994, and that the wife is not domiciled in England & Wales so that only the Portuguese court has jurisdiction. The wife took issue with this, so the proceedings were transferred to the High Court by Moor J on 6 March 2015. On 12 March 2015 the husband applied for directions and filed a statement in support.

4

It soon emerged that the husband had issued a second petition in Portugal. The wife's solicitors wrote to the Portuguese court on 19 March 2015, enclosing a translation, bringing the English petition to the court's attention and pointing out their duty to stay the Portuguese proceedings under Article 19(1) of Brussels II Revised pending determination of jurisdiction in England. There was a hearing in Portugal on 14 October 2015, which was for the purpose of conciliation. The Judge indicated to the wife's Portuguese lawyers (I am told) that they could make representations about staying or dismissing the Portuguese proceedings at the next hearing in Portugal. The wife's Portuguese lawyers then filed an Answer to the husband's petition, which was done on 16 November 2015. The husband's Portuguese petition has now been stayed by the Portuguese court, pending a decision of the English court as to jurisdiction.

5

On 13 March 2015 the wife had applied for maintenance pending suit which came before Bodey J on 21 April 2015. The Husband was present at that hearing and was represented by leading and junior counsel. There was insufficient time for the matter to be heard on that occasion and it was adjourned to be heard on 30–31 July 2015. On 10 May 2015 the husband served his statement in reply on the issue of interim provision. Then on 27 July 2015 he dis-instructed his English solicitors and since then has filed of a number of further statements, discussed below and caused his Portuguese lawyers to write to the Court and the Wife's solicitors.

6

Matters took a dramatic turn on 8 July 2015, when the husband's solicitors served the wife with a Talaq, notwithstanding his Portuguese proceedings. This document states that the husband had divorced the wife by way of Talaq on 20 March 2015, and that the divorce had been confirmed by a Judge of the Sharia court in Sharjah, UAE on 23 March 2015. The covering letter explained that the Iddah (reconciliation) period had expired, meaning that the parties were divorced. It is remarkable that the husband did not see fit to mention this at the first interim hearing before Bodey J on 21 April 2015, at which he was both present and represented. So, despite the fact that the husband had issued proceedings in Portugal, the marriage has now been effectively dissolved by the Talaq process in the UAE at his instance.

7

At the interim hearing on 30 July 2015 Mostyn J invited the wife to apply for permission under Part III of the Matrimonial and Family Proceedings Act 1984. Mostyn J by all accounts, and understandably, indicated that on the basis that the husband was asserting that the parties were already divorced, and because the wife did not challenge the Talaqdivorce, the court was entitled to proceed on the basis that the requirements in the Family Law Act 1986 had been met. The wife then made her actual application under Part III on the following day, on 31 July 2015, without prejudice to her English divorce petition and the jurisdiction thus seized under Brussels II. Since then, the wife's claim for a financial remedy has proceeded under Part III Matrimonial and Family Proceedings Act 1984. Further to Mostyn J's order that she have permission to amend her application under Part III in January 2016 on the basis of 12 months' habitual residence, the wife filed an amended D50F (her application for financial relief after an overseas divorce) on 31 July 2016.

8

At the hearing on 30 July 2015, Mostyn J among other things provided the wife with interim maintenance of £35,900pcm; ordered £13,333pcm by way of a LSPO; ordered the parties' interim statements to stand within the wife's application under Part III; ordered the husband to pay the wife's costs of £123,288.90; directed the exchange of Forms E by 14 September 2015; and of First Appointment documentation by 16 November 2015. He stayed (but did not dismiss) the wife's petition and financial applications thereunder until further order. The husband has not made any of the MPS/LSPO payments ordered, although there is no doubt that he is well aware of the orders made. The current arrears due amount to c.£740,000.

9

The wife was next granted a worldwide freezing order without notice by Roberts J on 19 August 2015 in the sum of £125m. At the return date on 2 September 2015, DJ Aitken continued the freezing order until 14 December 2015. That was extended again to the final hearing. It was further extended on 26 July 2016 to 3 October 2017, to allow for enforcement abroad. Interim third party debt and charging orders and a final charging order were made by DJ Aitken in respect of the costs order and interim maintenance and LSPO orders made by Mostyn J which the husband had then failed to pay in the sum of £284,900. The husband's English bank accounts then contained minimal sums (approximately £5,000), but the wife was granted a charge of £284,900 over the husband's share of the matrimonial home.

10

Paragraphs 8 to 13 of my order of 14 December 2015 set out further directions in relation to financial disclosure, and made provision for the exchange of witness statements in relation to the wife's Part III claim. The husband did not comply with any of those directions. On 23 March 2016 the wife sought a revised timetable for the provision of disclosure and evidence in light of the husband's non-compliance, with a penal notice attached to the appropriate paragraphs. On 5 April 2016, the husband's Portuguese solicitors PLMJ, who have continued to act for him and correspond on his behalf throughout these proceedings, wrote to me directly (via the RCJ Family email), setting out their client's objections to this course of action and pleading his willingness to enter into negotiations, but making neither a formal application nor an offer. When the wife confirmed to them a willingness to negotiate, no response was received.

11

The wife then made a further application, dated 28 April 2016, that sought to abbreviate the final hearing, in the face of the husband's non-compliance with disclosure obligations, avoiding the need for the holding of an FDR, and on the basis of the husband's expected non-attendance at the final hearing. That application was dealt with by me on 26 July 2016. I directed as follows:

Unless the respondent (husband) by the 9th August 2016:

(a) Provides the disclosure originally required by the order of Mostyn J on the 30 July 2015 in that he shall be 9th August 2016 provide a statement which gives full details of his property and income. The statement must be signed with a statement of truth contained within that document. At the same time as he sends a copy to the Court then he must send a copy to the applicant or her legal representative. He must use the appropriate standard form of statement (Form E) which may be obtained from the court office AND

(b) He pays the 12 months of outstanding arrears under the current maintenance pending suit order (a total of £590,796) OR he applies to vary that provision on or before 10th August 2016; such application to be in the proper form and supported by a statement of truth complying with paragraph (a) above and also supported by verifying documents.

THEN in default of compliance with (a) & (b) above then the following shall apply:

(1) The respondent shall be debarred from making representations at the ancillary relief hearing listed for the 3 October 2016. But this shall not prevent his attendance as a witness.

...

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