Traversa v Freddi (Part III application following Italian divorce)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,LORD JUSTICE THORPE,Lord Justice Rimer,Lord Justice Munby |
| Judgment Date | 14 February 2011 |
| Neutral Citation | [2011] EWCA Civ 81,[2010] EWCA Civ 640 |
| Docket Number | Case No: B4/2009/1826 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 2011 |
[2010] EWCA Civ 640
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(LOWER COURT No: FD08F00667)
(Mr Justice Bodey)
Before: Lord Justice Wilson
Case No: B4/2009/1826
Mr Frank Feehan QC and Ms Amalia Walker (acting pursuant to Direct Access through the Bar Pro Bono Unit) appeared on behalf of the Applicant husband.
The Respondent wife did not appear and was not represented.
Lord Justice Wilson:
A husband, as it will be convenient to describe him notwithstanding his divorce in Italy, applies for permission to appeal against an order made by Mr Justice Bodey in the High Court, Family Division, on 30 April 2009. The judge's decision was to refuse him leave to apply for financial relief under s.13 of the Matrimonial and Family Proceedings Act 1984. Thus the question before the judge was whether, for the purpose of s.13(1), there was substantial ground for the making by the husband of an application for an order for financial relief notwithstanding that the divorce had been granted overseas.
Thus today Mr Feehan QC, who, with Ms Walker, appears on behalf of the husband, has only to establish that he has a real prospect of persuading this court that the judge was wrong to conclude that there was no substantial ground for the husband to make the application. It is quite a low hurdle.
The husband is also out of time for bringing an appeal. In refusing the husband's application for leave the judge relied heavily (or so it seems to me at first sight) on the decision of this court in Agbaje v Agbaje [2009] EWCA Civ 1, [2009] 3 WLR 835. It was when, in May 2009, Mr Feehan learnt that the House of Lords had granted permission to the wife in Agbaje to appeal to it against that decision that he began to consider the possibility of bringing an appeal to this court from the order of Bodey J. Attempts were made to procure public funding for the husband but his means were somewhat too great for him to be entitled to it; and ultimately Mr Feehan and Ms Walker agreed to represent the husband pro bono by direct access through the Bar Pro Bono unit. They thereupon applied to the judge for permission to appeal. His paper refusal is undated but, I understand, was received by Mr Feehan on 23 July 2009. It is only fair to the judge to note that, in refusing leave, he stated that the decision of Agbaje in the Court of Appeal had not been determinative of his own decision and that, therefore, the result of a pending appeal to the House of Lords would be no more determinative. But, of course, what Bodey J would have been unable to forecast was what the House of Lords, or (as it was shortly to become) the Supreme Court, was to rule when, in March 2010, it allowed the wife's appeal at [2010] UKSC 13, [2010] 2 WLR 709. Although the paper refusal of Bodey J did not express the grant of any extension of time for appealing to this court, Mr Feehan tells me that, perhaps by a covering email, he did extend time, namely until 30 July 2009. In fact the notice of appeal was filed only on 20 August 2009. In that I am resolved to grant permission to appeal, I consider that, particularly in the light of the husband's lack of solicitors, I should grant the necessary extension of three weeks for the filing of the notice.
On an application for leave under s.13, the court has to survey whether there is substantial ground for considering that the applicant would surmount the “venue” hurdle in s.16 and then, in all the circumstances, secure an award under s.18. It is clear from the judge's judgment that the application for leave failed by reference to the “venue” hurdle. In [44] of his judgment Bodey J made clear, perhaps in terms which suggest a momentary forgetfulness that he was considering only whether there was a substantial ground for considering that the husband would surmount the hurdle, that the present was not a case in which it was appropriate for the courts of England and Wales to intervene to make financial re-arrangements between the spouses.
The husband lives in a property in Palmers Green owned by the wife. The wife lives in Brescia, which lies northeast of Milan; and the two children of the family, now both adult, probably still make their base with her. It was the attempt by the wife, following the Italian decree of divorce, to evict the husband from the property in Palmers Green which precipitated his application. Presumably his aspiration or substantial aspiration in these proceedings is to secure a transfer of that property to himself. During the marriage the wife placed in the husband's name what appears to be a relatively humble property in Calabria, about the value of which there is substantial dispute; and one may guess that, were this court ultimately to order a transfer to him of the property in Palmers Green, he would, in return, concede transfer of the property in Calabria to the wife.
In that the husband's application was refused by reference to the “venue” hurdle in s.16, it was not necessary for the judge to survey, otherwise than in passing, the financial circumstances of the parties which would have fallen for consideration under s.18. Nevertheless the judge might have noted that, as Mr Feehan tells me, the wife's admitted net wealth was more than €2,000,000 (and indeed that the husband alleged that it was more than double that figure). The wife appears to have alleged that the husband had assets in addition to the property in Calabria but one might reasonably proceed upon the basis that the wife is very much more wealthy than the husband.
At the time of the marriage in Italy in 1987 the parties elected a separate property regime, probably because the wife came from a wealthy family and wanted such protection. She does not suggest that either she or the husband took legal advice prior to making the election. But its effect was that, whether following the order made in Italy analogous to a decree of judicial separation between the spouses in 2004 or following the decree of divorce in Italy in 2008, the Italian court had no power to transfer property between the parties. The decision of the Supreme Court on the husband's appeal against the decision of this court in Radmacher v Granatino [2009] EWCA Civ 649, [2009] 2 FLR 1181, is presently awaited. I consider it very likely that the Supreme Court will comment valuably on the significance of a prenuptial contract entered into without legal advice; and although one will have to consider whether there should be any difference in the treatment of such a contract when it is weighed in the context of a proposed application under Part III of the Act of 1984 as opposed to the context of a domestic application for ancillary relief, I am clear that the appeal in the present case should not be heard until after the Supreme Court has delivered its judgment or judgments.
In the section of his judgment in which he surveyed the law, Bodey J very properly ended with reference to the decision of this court in Agbaje. In [31] he referred to the comity which, as Ward LJ had said, should have a significant influence on the outcome of an application under Part III. In [32] he referred to the notion of whether substantial justice had been done in the court overseas, being, according to Ward LJ, the proper focus of the overall enquiry. In reaching his conclusion Bodey J said, at [43]:
“I must ultimately follow the guidance of the Court of Appeal in Agbaje by focusing on whether the foreign court (Italy) treated the husband unjustly. Given the election of Separation of Property, albeit seemingly entered into without legal advice, I am not persuaded that the Italian legal system and/or its approach to the regulation of matrimonial finance and property rights has produced an overall unjust result as between the parties.”
In the light of the decision of the Supreme Court in Agbaje it is arguable that Bodey J was led by this court into error. In [51] to [54] of its judgment, delivered by Lord Collins, the Supreme Court in my view clearly implies that principles of comity add nothing useful to the analysis of a case under Part III. More important, however, is the ruling in [61] of the judgment that injustice is not a necessary precondition of the exercise of the jurisdiction albeit that of course it remains a relevant factor. Indeed it may not be without significance that, in [63] of the judgment of the Supreme Court, a decision of Bodey J in a case other than the present, in which he had said that it was appropriate for the English court to intervene under Part III only to the minimum extent necessary in order to remedy injustice, was contrary to principle.
In my view the general effect the decision of the Supreme Court in Agbaje is that this court had adopted a far too restrictive approach to applications under Part III. In such circumstances, and in the light of the way in which Bodey J expressed his decision, I am clear that I should grant permission to appeal. I do so notwithstanding concern that, were the husband's application ultimately to secure leave, a substantive enquiry might reveal his case to lack overall merit. In the judge's judgment there are a number of pointers to such a conclusion but Mr Feehan protests that the pointers were largely collected from an affidavit filed by the wife grossly out of time and at a stage so late that the husband was unable to marshal a proper response to it prior to the hearing.
In [55] to [57] of its judgment in Agbaje the Supreme Court referred to what it described as a...
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