FAMILY DIVISION
B e f o r e :
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Applicant |
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A |
Respondent |
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MR. N. DYER QC and MISS E. CLARKE (instructed by Sears Tooth) appeared on behalf of the Respondent.
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Crown Copyright ©
MR. JUSTICE COLERIDGE:
The evidence
The essential facts and findings from the previous judgment
- "- the key findings – which should determine the framework within which the award is made.
i. At the time of the marriage she [W] had assets (properties and cash) worth in broad terms $10m. (31)
ii. Overall I accept on the totality of their {H's witnesses] evidence (and that of the husband) that the wife did talk about her family's financial situation and she did say things which left them with the clear impression that the marriage was taking place in Country Y because they had agreed that it should take place there, that they intended to keep their finances separate and because of the ease with which either party could extract him or herself from the marriage with the minimum of financial ramification.
iii. I do not think either side is telling the whole truth and both have to an extent rewritten history, wittingly or unwittingly, to fit in with the subsequent events.(68)
iv. In 2009 neither side intended or expected there to be any financial arrangements arising out of the divorce other than in relation to the child. (65)
v. I am also satisfied that there were conversations about the broad basis upon which they were getting married and the way in which they would manage their money thereafter. (76)
vi. How would this husband and this wife have answered the question, if asked at the time of the wedding "Do you intend to make a financial claim if and when the marriage ends?". I am quite satisfied by inference, to the point of being sure, that the answer would have been, in both directions "only if I really need to".
vii. The parties agreed to get married and divorced in Country Y and the marriage and the wedding went ahead on the broad but somewhat vague understanding that neither expected to look to the other for financial support during the marriage unless they had to.
viii. Their finances were kept almost entirely separate during the marriage as part and parcel of that. In the event of its ending the clear inference which I draw, is that they considered that their obligations to each other should be at the very worst, limited.
ix. There was not even a tacit or implied acceptance that their wealth would be divided up and shared at the conclusion of their marriage.
x. [Re sale of W's shares to her brother] I think that this degree of informality, upon which the wife and other members of the family completely relied, places him [her brother] under a very strong (moral) obligation, to provide for her financially from the family fortune in the coming years whether or not strictly she has a need for support
Other factors
1. Further to the findings, there are the magnetic 'neutral' factors that are highly material in the court's consideration of sections 16 and 18 of Part III viz:
a. This was a short(ish) marriage that lasted for only 4½ years and produced one child;
b. W is (and has been for many years) a wealthy woman with c£7m of assets of her own now and with considerable family wealth behind her;
c. The parties married and divorced (consensually) in a country (W's by birth and of lasting attachment) that W accepted afforded no legal redress to either party in the event of divorce.
d. Although W has a substantial connection to this jurisdiction, both H and the marriage itself do not. This is not a marriage that was English from the beginning to the end, or a case that is English through and through. This is, in reality, a very international case.
e. (W would emphasise) H's wealth of c£34m was generated substantially during the marriage – but that is of less significance in a needs case as opposed to a sharing case.
2. The table below sets out the international dimensions of the case.
1. W born in Country Y and educated in Country R: (in Europe), lived in City UA for further education and then in City UB (both cities the USA). |
H born in City S the capital of Country S. Educated in Country S (with one year at a college in England when H aged 20) |
2. Before they met W had lived in England from 1987. |
Before they met H lived in Europe. |
3. W has dual Country Y and UK citizenship. |
H has Country S / Country V nationality |
4. W acquired a flat in London in Knightsbridge, and in 2000 started her accessories company which focused on the international fashion market with W travelling around the world sourcing materials and going to shows. |
H never acquired any property in England (even in later years when he was rich). |
5. W retained strong connection with Country Y: she went regularly to visit her parents/mother. |
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6. W owned shares in a Country Y family company and property and land in Country Y. |
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7. 2002/3 relationship began: W lived in London |
H lived in City R in Country R |
8. March 2003 | H worked for a hedge fund based in London, but abroad much of the time – sufficient time abroad to justify being (retrospectively) non resident for tax purposes |
9. March 2004 | . H moves into W's Knightsbridge flat |
10. Marriage in City Y (capital city of Country Y) : celebrations in City Y and in Country S | |
11. Sept 2004 to Dec 2005 15 months married life in London | |
12. Dec 2005 to mid 2009 3½ years of married life in the Bahamas. Parties obtained Permanent Residency visas |
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13. W instructed agents to place her Knightsbridge Flat on the market for sale . |
H bought properties and assets (boats etc) in various countries – none of them were in England. |
14. The child born in Country J (in Europe). The child did not live in London during the marriage |
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15. On separation, W left the Bahamas and (via the USA) went to live in City S from June 2009 until April 2010. |
On separation H was nomadic. |
16. 16 September 2009 - divorce by khula in City Y.(W was the petitioner) | |
17. 17 September 2009 W's draft agreement sent to H by W's lawyer in City S on basis that W was resident in City S. W was intent on issuing proceedings in City S to have agreement made into an order. |
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18. W returned to England in April 2010. |
H has only been in London post separation due to the Part III proceedings. |
19. W commenced Part III proceedings in October 2010 (her third 'divorce' forum after City Y and City S) |
"... Section 18 could have provided that, once England and Wales was to be regarded as the appropriate forum under section 16, then the case was to be treated as a purely English proceeding for financial relief. But it did not do so. Instead a more flexible approach was deliberately adopted. There will be some cases, with a strong English connection, where it will be appropriate to ask what provision would have been made had the divorce been granted in England. There will be other cases where the connection is not strong and a spouse has received adequate provision from the foreign court. Then it will not be appropriate for Part III to be used simply as a tool to "top-up" that provision to that which she would have received in an English divorce."
Then at paragraph 73 of the speech of Lord Collins he says:
"73. The amount of financial provision will depend on all the circumstances of the case and there is no rule that it should be the minimum amount required to overcome injustice. The following general principles should be applied. First, primary consideration must be given to the welfare of any children of the marriage. This can cut both ways as the children may be being supported by the foreign spouse. Second, it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all proceedings taken place within this jurisdiction. Third, where possible the order should have the result that provision is made for the reasonable needs of each spouse. Subject to these principles, the court has a broad discretion. The reasons why it was appropriate for an order to be made in England are among the circumstances to be taken into account in deciding what order should be made. Where the English connections of the case are very strong there may be no reason why the application should not be treated as if it were made in purely English proceedings."
There are other sections in that part of the judgment which are helpful too but I shall not burden this judgment with their inclusion. I have the case well in mind, unsurprisingly.
...when almost all relevant connecting factors are with England. In those circumstances here would be no reason not to apply English law so as to give the same provision for the wife as she would have obtained had there been divorce proceedings in England. | It is not the purpose of Part III to allow a spouse (usually, in current conditions, the wife) with some English connections to make an application in England to take advantage of what may well be the more generous approach in England to financial provision, particularly in so-called big-money cases. |
The husband
The wife
The question of needs
Income provision