COURT OF APPEAL
APPEAL OF RESPONDENT
FROM ORDER OF MR JUSTICE WALL
B e f o r e :
LORD JUSTICE BUTLER-SLOSS
LORD JUSTICE LEGGATT
Chancery House, Chancery Lane, London WC2
(Official Shorthand Writers to the Court)
MR NICHOLAS MOSTYN (Instructed by Wilkinson Maughan, London) appeared on behalf of the Respondent.
Crown Copyright ©
LADY JUSTICE BUTLER-SLOSS: This appeal has arisen on an issue under the provisions of Part III of the Matrimonial and Family Proceedings Act 1984, (the 1984 Act). The respondent to the appeal, whom I shall call the former wife, applied ex parte to Wall J under s13 of the 1984 Act for leave to make an application for financial relief under s12. The judge granted the ex parte application for leave on the 17th December 1993. The appellant, whom I shall call the former husband, applied to set aside the grant of leave and on the 24th May 1994 the judge refused to set aside his grant of leave but gave leave to appeal to this court. On the 27th September this court allowed the appeal but reserved its reasons.
The former wife is 58 and Irish. She was married to an American now 69 on the 15th July 1983 in California and divorced from him in California on the 18th December 1987. They had however met in 1977 and cohabited in the USA prior to the marriage. Just before the marriage the former wife signed an ante-nuptial settlement which disclosed that the former husband was a millionaire and the effect of which was to exclude Californian community of property law but gave the former wife an apartment which after the wedding was transferred to her.
The spouses separated in January 1987; the former wife issued divorce proceedings in California and both were throughout represented by lawyers. There was a short failed reconciliation. On the 8th April 1988 a comprehensive agreement was negotiated and became the order of the Californian court. This order included spousal support for a limited period until 1990 and capital payments. The effect of the order was to create a clean break final order between the spouses. The terms of the order were implemented by the former husband. There has been no application to the Californian court to review or vary the order.
The parties from time to time cohabited briefly, never longer than about two months, both in the USA and in England after the former wife came here in 1989. They finally parted in 1992. The former wife`s case was that as a result of their continuing association and his remaining in her life she was induced to take financial steps to her detriment upon the promise of the former husband to maintain her for the rest of her life. This he has refused to do and she is now in a parlous financial situation. There is no evidence to the contrary adduced by the former husband.
Before the judge the former wife sought to challenge the original Californian order and also to rely upon the subsequent history in support of her application under the 1984 Act. Wall J decided that she could not seek to reopen the fairness of the Californian consent order and held that if the subsequent events had not occurred he would not have given leave. He was satisfied however that after the divorce the parties had maintained a relationship with the adverse consequences depicted by the former wife and the former husband had, (prima facie), by his conduct incurred fresh obligations and responsibilities towards her and she should be allowed to apply to the English court under the 1984 Act.
Prior to the 1984 Act the English courts had no jurisdiction to grant ancillary relief where the divorce decree had not been granted in this country, even though there was property - often the matrimonial home - within the jurisdiction. Spouses, (generally wives), who were divorced in other jurisdictions in which no financial order had been made were appearing before the English courts in an attempt to bring their financial hardship and the injustice of their position within the ambit of the English law. The increasing problems which these cases raised caused the Law Commission to recommend to Parliament legislation to empower the English courts to entertain applications for financial provision notwithstanding the existence of a prior foreign divorce. Parliament enacted the 1984 Act under which either party to a marriage, which has been dissolved in an overseas country and where the divorce is recognised in England, may apply to the court for an order for financial relief, (s12). Leave of the court is required by s13 which states:-
"(1) No application for an order for financial relief shall be made under this part of this Act unless the leave of the court has been obtained in accordance with the rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order."
This former wife has complied with the jurisdictional requirements set out in s15 since she is habitually resident in England.
S16 requires the court to consider whether England is the appropriate venue for the application:-
"(1) Before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application."
In s16(2) the court shall in particular have regard to a number of specific matters which it is not necessary to set out in this judgment. Once leave has been given, s17 imports into the 1984 Act the provisions of Part II of the Matrimonial Causes Act 1973 and by s18 the court in exercising its discretion applies s25 of the 1973 Act.
There was considerable argument before the judge as to the meaning of the test to be applied on the leave application. I agree with Mr Holman QC for the former husband that it is not necessary for this court to embark upon a similar detailed scrutiny of the words of the section. As Purchas LJ said in Holmes v Holmes  Fam.47 at page 54 there is no opaqueness in the language. The court in Holmes took into account the criteria set out in s16 and the relevant circumstances in applying the s13 test. It was not necessary to consider beyond s16 since the application was doomed to failure on the issue of jurisdiction. Ewbank J in Z v Z (Financial Provision: Overseas Divorce)  2 FLR 291 also cast an eye on the matters which would arise under s18 if the application for leave were granted. I entirely agree with the approach of Ewbank J in Z. In considering whether there is substantial ground for making an application the likely outcome of the application, if made, has to be highly relevant.
Mr Holman has submitted to us that the mischief that the Act was designed to redress did not include the case of a foreign court of competent jurisdiction making an order which was neither appealed nor impugned; where the order was final and designed to create a clean break and where the other spouse had fully complied with the order. He argued that thereafter the relationship was one of man and mistress and Part III did not apply. He invited our attention to the working paper of the Law Commission and their Report which indicated the limited scope of the proposed legislation. It is clear from the working paper that the remedy to be provided was to be in those exceptional cases where spouses, usually a wife, had been deprived of financial relief in circumstances where an English court might be driven to hold that it would be unjust to recognise the limiting effect of the foreign decree. The Law Commission considered the mischief at which the legislation should be directed to be a narrow one and did not think it would be appropriate to encourage applications to the courts of this country inviting them to act, in effect, as a court of appeal from courts of another country.
Mr Mostyn for the former wife has submitted that the words of the Act are wide enough to give the courts jurisdiction and the effect is to enable a former spouse after a foreign divorce to have the opportunity to come back to court even in circumstances in which an English court would refuse to intervene after an English financial order. He suggested that the remedies available under our domestic matrimonial jurisdiction were inadequate and those applying under the 1984 Act should not be penalised by a refusal to grant leave when Parliament has passed legislation in terms wider than the domestic law. He relied upon two decisions of first instance which do not, in my view, assist us. By not referring to M v M (Financial Provision after Foreign Divorce)  1 FLR 399, I should not like it to be assumed that I necessarily agree with it. The decision in S v S (Financial Provision: Post-divorce Cohabitation)  1 FLR 228 is however one in respect of which I have the gravest reservations.
Mr Mostyn accepted that the present case was not one contemplated either by the Law Commission or by Parliament. That concession for me is crucial since I can see no reason to give to those in the position of this former spouse a benefit which was not intended by the passing of the 1984 Act and is unavailable under the domestic matrimonial legislation. The objective of the 1984 Act was to mitigate disadvantage not to give extra advantages to a particular group of applicants.
I respectfully agree with Russell LJ in his judgment in Holmes when he said at page 59:-
"Prima facie the order of the foreign court should prevail save in exceptional circumstances ......"
In my judgment it would be wrong in principle and contrary to public policy to extend the narrow compass of an Act designed to meet limited objectives to cover a wider and unintended situation. The facts of this case vividly illustrate my conclusion. A court of competent jurisdiction in California has made a consent order negotiated by lawyers. That order was not appealed nor successfully criticised. It was designed to be comprehensive and final, embodying all the ancillary matters following upon the dissolution of a failed marriage. The former husband complied with the order. It is inconsistent with the comity existing between courts of comparable jurisdiction for an English court to review or seek to supplement the foreign order on the basis of the subsequent relationship of the former spouses. It is all the more so when an applicant in similar circumstances seeking to vary a final order under our matrimonial jurisdiction would by statute be precluded from doing so. In 1984, the same year as the Act with which we are concerned, there were major amendments to the Matrimonial Causes Act 1973 in its ancillary relief provisions, but significantly not to give rights to former spouses within England and Wales similar to those now claimed for applicants after foreign divorces.
There has to be finality and an end to litigation. In my view the umbrella of the dissolved marriage which covers the post -divorce period cannot remain open for ever. Upon the making and implementing of a `clean break` order between spouses with no children, that umbrella has to be shut. Thereafter the relationship which may develop between former spouses is to be dealt with under civil law. The rights of one who enters into cohabitation without marriage are manifestly less satisfactory than under our matrimonial legislation but that deficiency is not a reason to extend the provisions of the 1984 Act to cover a situation neither referred to by the Law Commission nor in the contemplation of the legislature. Nothing I have said however is intended to affect that group of cases which properly fall within the ambit of Part III of the 1984 Act.
The prospects of success of this application under s13 are nil and consequently I do not consider that there was substantial ground for the making of the application.
There is one other matter to which I should like to refer briefly. Wall J expressed some concern about the course of the hearings before him in which he had an ex parte application and thereafter an inter-partes hearing to consider whether to set the leave aside. The procedure for leave under s13 might usefully be reviewed.
LORD JUSTICE LEGGATT: I shall briefly say why I do not consider that Part III of the Matrimonial and Family Proceedings Act l984 was intended to apply to a case like this.
The judge found that "because there has been a resumption of financial dealings between the parties in which [the wife] has acted to her detriment, it seems fundamentally unjust to allow the husband to rely on the American proceedings for protecting him against any further claim." That appeared in his second judgment in the form of a finding that because "by his conduct towards her he has incurred fresh obligations and responsibilities towards her" there should be leave "to supplement the Californian order in the light of subsequent events." I am unable to understand the logic of that approach. The purpose of the Act, as appears from its long title, is "to make provision for financial relief to be available where a marriage has been dissolved....in a country overseas." It empowered our courts to grant financial relief when no or no sufficient relief had been awarded abroad. But in this case financial relief was provided for the wife by the Californian Court when the marriage was dissolved. There has been no need to make it available in this country or anywhere else. In my judgment nothing that has happened since the clean-break order was made alters that position. The wife was provided for as such. The fact that she has since yielded once more to her former husband's blandishments, and resumed a relationship with him that seems to have been even more short-lived than their marriage does not entitle her to financial provision anew. The right to financial provision was satisfied by the order of the Californian Court, and not resuscitated by subsequent events.
In answer to the question why the Court should apply Part III so as to confer on a foreign divorcée advantages not available to her English counterpart, Mr Mostyn could submit only that (a) the language used by Parliament enabled the Court to do so, (b) the justice of the case demanded it, and (c) in an English case the Court could achieve the result contended for by granting leave to appeal out of time: cf. S v S [l994] 2 FLR 228. None of these submissions answers the point of principle. There is no warrant for supposing that Parliament or the Law Commission had a case like the present in mind. Even if the result contended for is socially desirable, that does not render it just to do in the foreign context what cannot be done domestically. I am very doubtful whether the expedient adopted in S v S of granting leave out of time represented a proper exercise of discretion. In my judgment there is no reason why the Court should so apply Part III as to achieve a result different from that available in respect of an English divorce, and it would be wrong in principle to do so.
Even if the English Court would be the appropriate forum, it would have no occasion to grant financial relief because in my judgment there is no substantial ground for applying for such an order. I therefore agree that the appeal should be allowed, and the grant of leave set aside.
LORD JUSTICE BALCOMBE: I have had the advantage of reading the judgment of Butler-Sloss, L.J., with which I agree. I add a few words of my own because we are differing from the decision of Wall, J.
Section 13 of the Matrimonial Proceedings and Property Act 1984 provides that the court shall not grant leave for an application under Part III of the Act unless it considers that there is substantial ground for the making of the application. Section 16(1) of the 1984 Act provides that the Court shall not make an order for financial relief under Part III unless it is satisfied in all the circumstances of the case (my emphasis) that it would be appropriate to do so.
Wall, J. considered that the subsequent co-habitation between the parties after the Californian divorce was a circumstance which satisfied him that it might be appropriate to make an order, and it was on that basis alone that he granted the former wife leave to make an application for financial relief under Part III of the 1984 Act. In my judgment this was wrong in principle.
The mischief which the 1984 Act was intended to cure was considered by the Law Commission in their working paper (No. 77, 1980) and Report (1982, No. 117) and is exemplified by the case of Quazi v. Quazi  A.C. 744. It was never contemplated that the Act could or should be used to provide financial relief arising from a status of co-habitation, even if the parties had previously been married. Co-habiitation subsequent to an English divorce is not a basis for the English court to grant matrimonial financial relief - and in this connection I share the reservations of Butler-Sloss, L.J. about the decision at first instance of S v. S (Financial Division: Post-divorce cohabitation)  1 F.L.R. 228 - and it is inappropriate that it should be considered as a ground for English financial relief subsequent to a foreign divorce.