COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE FAMILY DIVISION
The Honourable Mr Justice Bodey
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE RIMER
THE RIGHT HONOURABLE LORD JUSTICE MUNBY
| FRANCESCO TRAVERSA
|- and -
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Justin Warshaw and Madhavi Kabra (instructed by Callaghan & Co) for the Respondent
Hearing dates: Thursday 11th November 2010
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LORD JUSTICE THORPE:
The Statutory Provisions
"Applications for Financial Relief after overseas divorce"
Then follows the section upon which this appeal principally focuses headed:
"Leave of the court required for applications for financial relief."
I pass over section 14 to arrive at section 15:
"Jurisdiction of the court."
Then follows section 16:
"Duty of the court to consider whether England and Wales is appropriate venue for application."
Section 17 specifies the orders that may be made and section 18 the matters to which the court is to have regard in exercising its powers under section 17. The broad effect of section 18 is to guide the exercise of judicial discretion by importing the section 25 check list from the Matrimonial Causes Act 1973.
"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 rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application of such an order."
"An application for leave to apply for an order for financial relief under Part III of the Act of 1984 shall be made ex-parte by originating summons issued in Form M25 out of the Principal Registry and shall be supported by an affidavit by the Applicant stating the facts relied on in support of the application with particular reference to the matters set out in section 16(2) of that Act."
"In the present context the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than 'serious issue to be tried' or 'good arguable case' found in other contexts. It is perhaps best expressed by saying that in this context 'substantial' means 'solid'."
"(1) To what issue the matters listed in section 16(2) are directed.
(2) What role (if any) forum non conveniens principles or comity have to play in the exercise in the discretion.
(3) Whether the applicant must show exceptional circumstances, or hardship, or serious injustice, before an order can be made.
(4) To what matters the court should have regard in deciding whether, and in what way, to exercise its powers under section 17, and in particular whether there is a principle that the court is limited to making an order which represents the minimum necessary to remedy the hardship or injustice."
Submissions on appeal
i) The husband has made no application for any form of financial relief in Italy.
ii) He has been served with eviction proceedings.
iii) The cottage in Calabria he would transfer to the wife in return for the home in Palmers Green.
"The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."
"55. But, although the point does not arise on this appeal, a warning note must be struck about the position with regard to states to which Council Regulation (EC) No 44/2001 (OJ 2001 L12, p1) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("the Brussels I Regulation") applies. The effect of sections 15(2) and 28(4) of the 1984 Act is that the jurisdictional provisions of Part III and Part IV respectively are subject to the Brussels I Regulation (and the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1988)). Those sections do not address the question whether a judgment in a Brussels I Regulation State making financial provision on divorce (or refusing to make such provision) would be entitled to recognition so as to prevent an award under Part III or Part IV.
56. For the purposes of Brussels I Regulation and the Lugano Convention there is a distinction between 'maintenance' which is within the scope of the Regulation (article 5(2), which confers jurisdiction on the courts of the maintenance creditor's domicile, in addition to that of the debtor's domicile under article 2); and 'rights in property arising out of a matrimonial relationship' ('rιgimes matrimoniaux') which are expressly *725 excluded from the scope of the Regulation. These are autonomous concepts: de Cavel v de Cavel (No 1) (Case 143/78)  ECR 1055; de Cavel v de Cavel (No 2) (Case 120/79)  ECR 731. The Brussels II Revised Regulation (Council Regulation (EC) No 2201/2003 on jurisdiction and the recognition of judgments in matrimonial matters and matters of parental responsibility) (OJ 2003 L338, p 1) does not apply to the 'property consequences of the marriage or any other ancillary measures' (recital (8)), or to 'maintenance obligations': recital (11).
57 It is only necessary to mention that if an award of maintenance had been made in another member state, the question might arise as to whether the application in England under Part III would be precluded on the basis that the issue of maintenance had been determined in the other jurisdiction and that that determination was entitled to recognition. That would depend, at least in part, on whether the application was to be characterised as relating to maintenance or to rights in property arising out of a matrimonial relationship. Van den Boogaard v Laumen (Case C-220/95)  QB 759 shows that a transfer of property may be in the nature of maintenance if it is intended to ensure the support of a spouse; but a transfer of property which serves only the purpose of a division of property is not in the nature of maintenance, and concerns rights in property arising out of a matrimonial relationship. See also Schlosser Report on the Accession Convention to the Brussels Convention (OJ 1979 C59, p71), para 50; Moore v Moore  2 FLR 339. This is an area which involves difficult questions which do not arise for decision on this appeal."
"(4) Assigns the marital home, including furnishings, to Freddi, Carla.
(5) Fixes the contribution to be paid by Traversa Francesco for the maintenance of the two children at 300 for each of them, to be paid no later than the tenth day of each month and to be reassessed annually according to the Istat indices starting from 11.11.2005, as well as 50% of the extraordinary, medical and school expenses."
"In a separation proceeding the only financial relief available can be a maintenance order in favour of the spouse who has a lower income and is not faulty for the separation."
"Under the regime of separation of properties under Italian law each spouse maintains his/her own properties regardless of whether they have been acquired prior, during or after the marriage. There are no exceptions, not even for the matrimonial home.
Note however that in the separation/divorce proceedings the matrimonial home is normally assigned to the spouse who has custody of children, regardless of the fact that the other spouse may be owner or co-owner of such a property. The assignment will last until the children remain in the marital home and is however revoked in case or new marriage or stable cohabitation of the spouse to whom the house has been assigned."
"It is an 'inter partes' application, since it was so fixed prior to the Court of Appeal's decision in Agbaje. Nowadays it would have come on as an ex parte application and would have been dealt with as such."
"9. I should say a few words about procedure. Here W filed a statement, submitted a skeleton, and instructed counsel. The reason she was able to do all this was because she was served with the originating process, even though there was no requirement to do so. There was some faint protest raised at the presence of her legal team and I was asked not to read the skeleton submitted on her behalf. I think that there is a helpful analogy to be drawn with the appellate process, an analogy that is given legitimacy by para 33 of Agbaje. Although an application for permission to appeal is strictly ex parte it is a commonplace for the other party to file a skeleton in opposition, and such a skeleton is invariably read (in my experience). Moreover, the Court of Appeal has full power to adjourn the application for permission to be heard inter partes either with or without the appeal proper to follow if granted."
Lord Justice Rimer:
Lord Justice Munby:
"In the present context the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than "serious issue to be tried" or "good arguable case" found in other contexts. It is perhaps best expressed by saying that in this context "substantial" means "solid.""
"Once a judge has given reasons for deciding at the ex parte stage that the threshold has been crossed, the approach to setting aside leave should be the same as the approach to setting aside permission to appeal in the Civil Procedure Rules, where (by contrast with the Family Proceedings Rules) there is an express power to set aside, but which may only be exercised where there is a compelling reason to do so: CPR r 52.9(2). In practice in the Court of Appeal the power is only exercised where some decisive authority has been overlooked so that the appeal is bound to fail, or where the court has been misled: Barings Bank plc v Coopers & Lybrand  EWCA Civ 1155; Nathan v Smilovitch  EWCA Civ 759. In an application under section 13, unless it is clear that the respondent can deliver a knock-out blow, the court should use its case management powers to adjourn an application to set aside to be heard with the substantive application."
"(1) The court may grant an application made without notice if it appears to the court that there are good reasons for not giving notice.
(2) If the applicant makes an application without giving notice, the applicant must state the reasons why notice has not been given."
FPR 18.11 provides that a person who was not served with a copy of the application notice before an order was made may apply to have the order set aside or varied; such application must be made within 7 days beginning with the date on which the order was served on the person making the application. (FPR 18.10(3), it may be noted, requires that any order made without notice must contain a statement of the right to make an application to set aside or vary the order under FPR 18.11.)
"So the central question is: does H's claim have a maintenance element? If it does then it is clear to me then it cannot proceed".
"It should be possible to deduce [the specific aim of the decision rendered] from the reasoning of the decision in question. If this shows that a provision awarded is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, the decision will be concerned with maintenance. On the other hand, where the provision awarded is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under the Brussels Convention. A decision which does both these things may, in accordance with article 42 of the Brussels Convention, be enforced in part if it clearly shows the aims to which the different parts of the judicial provision correspond."