T v T (Application for financial relief after an overseas divorce)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 11 February 2020 |
| Neutral Citation | [2020] EWHC 555 (Fam) |
| Date | 11 February 2020 |
| Docket Number | No.FD18F00083 |
| Court | Family Division |
[2020] EWHC 555 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr Justice Holman
(sitting throughout in public)
No.FD18F00083
Mr H. Campbell (of counsel) appeared on behalf of the applicant.
THE RESPONDENT did not appear and was not represented.
(As approved by the judge)
This is the substantive final hearing of a former wife's application under Part III of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”) for financial relief after an overseas divorce.
I will for convenience refer to the parties as “the husband” and “the wife”. The husband, who is Russian and lives in Moscow, has not participated in any way whatsoever in these proceedings. He has made no disclosure at all of his means. He is in breach of several orders to do so. He has ignored, and not paid a penny under, the interim order for maintenance and legal costs funding. He has not attended or been represented at this or any previous hearing.
I am quite satisfied that the husband has been served with all those orders and the documents in this case, and with notice of this hearing. His attitude is, accordingly, one of studied contempt for this court and these proceedings; and, frankly, contempt for his former wife, to whom he was married for 25 years and by whom he has two children.
The essential facts are as follows. The husband is now aged 50, and the wife is now aged 48. The parties are both of Russian origin and are Russian citizens. The wife, but not the husband, is now also a British citizen. They met in 1989 when the wife was at university and the husband had just left the Russian army. They married in Russia in July 1992. The wife was then aged just 21. Neither of them had any money.
The parties have two children. The elder, a daughter, was born in 1996 and is now aged 23. She is currently taking a Master's degree at University College, London. The younger, a son, was born in 2000 and is now aged 19. He is hoping to go to university this year. Both children have dual Russian and British citizenship and currently live with their mother within Greater London.
The wife is highly educated. She has a law degree from Moscow Law Academy and a Master's degree in law from University College, London. She also has an MBA from Chicago Business School.
The husband has a Master's degree in finance.
In 2001 the husband purchased in Moscow the flat where he still resides at Miusskeya Square.
In September 2003 the husband suggested to the wife that she move to London with the children, which she did when she commenced her course at University College, London. She was at the time unaware of the husband's motivation. She, with the children, have lived in London ever since. She studied for her MBA at the London campus of the Chicago Business School.
The husband continued to live in Moscow, but travelled to London for several days each month and the marriage remained apparently happy, despite the separation.
At Christmas 2016, the parties and their children were all on a skiing holiday together in Andorra. The husband told the wife that he wanted a divorce, and informed her that he was living with another woman in Moscow, by whom he had four children, then aged 13, 11, 7 and 3.
It thus follows that the first of those children was born in about 2003 and at about the time that the husband encouraged his wife to move to London. This involves cruel deceit on his part. For 13 years he had lived a double life, completely unknown to his wife. Unsurprisingly, the wife decided that she would divorce him, and commenced proceedings by a petition issued in England in January 2017.
The husband avoided service of those proceedings, but in June and July 2017 he did engage in financial negotiations with the wife through English solicitors instructed by each party. During those negotiations, which were inconclusive, the wife held back from advancing her petition for divorce.
On 31 October 2017, the husband's English solicitors informed the wife's solicitors that in the meantime the husband had, without her knowledge at all, obtained a divorce in Russia which had become final on 19 October 2017. That involved further treacherous deceit by the husband.
However, although she had not had any notice of those proceedings, the wife decided that she would accept the validity of the Russian divorce. No financial provision has been made for her in the Russian divorce proceedings, and she later applied for, and was granted, permission to apply for financial relief after an overseas divorce under Part III of the 1984 Act.
I next describe that in April 2011 the husband had asked the wife to sign, and she did sign, on 19 April 2011, a post-nuptial agreement in Spain. It purports to be an agreement under Russian law, but was actually signed before a notary in Barcelona. The wife says that the husband told her that the purpose was to protect property in Russia from possible creditors, and also that it would make it easier for him to do business in Russia if he no longer had to seek her agreement to deal with the proceeds of any business deals.
The wife has been advised that the effect of the agreement under Russian law is that on divorce she would receive the flat at Miusskeya Square but only when the husband's four children who live in the flat are no longer minors. That is in many years' time. She would receive nothing else.
In my view that agreement is not, under English law, of any relevance or effect at all, for a combination of three reasons. First, the wife had no legal advice whatsoever prior to, or at the time of, signing it. Although she has academic legal qualifications, she is in no sense a matrimonial or family lawyer. Second, there was no prior disclosure of the husband's means at all. Third, and most conspicuously, the wife was at the time continuously deceived as to the husband's second family and children in Moscow. Frankly, under English law that agreement is not worth the paper it is written on.
There is clearly jurisdiction in this case under section 15(1)(b) of the 1984 Act. The wife had been habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave, and for many years before that.
The restrictions under section 20 of the Act do not apply in this case.
THE DUTY UNDER SECTION 16
By section 16 of the 1984 Act, I must first decide whether in all the circumstances of the case it would be appropriate for an order for financial relief to be made by a court in England and Wales, and I must in particular have regard to the matters listed in section 16(2) of the Act which I now specifically, but briefly, address in turn:
(a) There is a distinct, genuine, and considerable connection between the wife and England and Wales. She is a British citizen. She has lived here since 2003. The husband has a connection too, although a lesser one. He encouraged his wife and children to move here in 2003 and for many years funded their residence here. Until 2016 he regularly visited and stayed with them here. His marital children are British citizens and have lived most of their lives here.
(b) There is also a considerable connection with Russia, where the marriage was dissolved. Both parties are Russian citizens. They were brought up there. They married there. The husband continues to live there.
(c) The husband has business interests in Spain and jointly owns a hotel there (see below) but, that apart, neither party has any particular connection with any country outside England and Wales than Russia, of which I am aware.
(d), (e) and (f) The wife has not received and is not likely to receive any financial benefit in consequence of the divorce in any country outside England and Wales. No order has been made in Russia for the benefit of the wife, and any possibility of her obtaining and enforcing one is illusory, as more fully explained by the wife at paragraph 38(iv) of her statement dated 20 November 2018.
(g) There is no known property in England and Wales in respect of which an order in favour of the applicant wife could be made.
(h) The wife recognises – and I recognise – that she may face considerable difficulty and a protracted process in seeking to enforce any order which I may make, but there is a realistic possibility of her being able to do so against assets which the husband owns in Spain. In view of possible changes following on Brexit, she needs to be able to get on with this well before the end of 2020.
(i) The length of time since the Russian divorce in October 2017 is now a little over two years. The wife first applied for permission under Part III in November 2018 and there has been no appreciable delay on her part.
In the light of these matters and of the matters which I must shortly consider under section 18 of the 1984 Act, I am well satisfied that it is appropriate for an order for financial relief to be made for the wife in England and Wales, and I now proceed to consider the wife's application substantively.
SECTION 18 OF THE 1984 ACT AND SECTION 25 OF THE 1973 ACT
Both children are now over the age of 18, and section...
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