England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		Date: 16th December 2013

MR. JUSTICE MOSTYN:

1. This is an application for " interim interim" financial provision by the wife for herself and for the two children of this marriage, to endure merely until the next hearing, on 21^st February 2014, when the interim arrangements will be reconsidered. It can therefore be seen that we have spent half a day of valuable High Court time debating what the scale of support for the wife and the two children should be for two months. It is a matter of some considerable surprise to me that relations are so antagonistic between the parties, and possibly their representatives also, that cover for that finite period has not been agreed on a no admissions without prejudice basis, but the court is here to adjudicate these disputes and to provide access to justice, even if the court might think that consumption of the resources of the court for such a temporarily trifling dispute is disproportionate.
2. The husband is a foreign national, aged 62. He has four wives by virtue of polygamy being permitted in his home country, of which this wife is no.4, who he married in 1999. In the 1990s, his involvement in politics in his home country led to self imposed exile. . He later returned, was tried and convicted and confined in prison until 2004, when he was released on house arrest, and released therefrom in 2006.
3. It seems to me obvious that, before these difficulties in the 1990s, the parties enjoyed a high standard of living. For example, they were able to purchase property here; they were able to visit the United States, where their daughter, S, was born on 8^th July 1999 and where, after his release and confinement, their son, T, was born on 17^th January 2008. In the traditional way, they were able to spend some of the time of the hot summer months here but they lived predominantly in the husband's home country , visiting also Egypt, from where the wife hails. It seems to me obvious that their respective domiciles are (in the case of the husband) his home country , and in the case of the wife a domicile of origin in Egypt, possibly becoming a domicile of choice in the husband's home country on the marriage.
4. The relationship broke down in 2011. One unknown factor is the scale of the standard of living between 2006 and 2011. The wife has filed copious evidence about this, to which the husband has not yet had an opportunity to reply. It seems to me that it would be unreal for me to proceed on any basis other than it was high, possibly very high.
5. The marriage broke down in 2011 and the wife moved here permanently with the children. She says "permanently" - that is the word used by Mr. Yates in his chronology - on 22^nd April 2011. It is important that I mark that date, given that the husband says that the parties were divorced, irrevocably, by a triple declaration of talaq in the husband's home country on 29^th March 2012, which is less than one year after the date when Mr. Yates says the wife moved permanently here. When Mr. Yates says the wife moved permanently here, that was permanent only up to a point, inasmuch as it is perfectly clear from Mr. Cusworth's chronology that, between July 2012 and August 2013, the wife was shuttling with the children between here and Cairo, arguably spending rather more time in Cairo than here, and indeed using £1.8 million which had been provided to her by the husband in February 2012 to buy a villa in Cairo, which cost £2.3 million (EGP23 million), she finding the shortfall by selling properties which she owned in Egypt. That property was purchased in 2012 and is a substantial capital asset of the wife and must be borne in mind when I consider the claims which she makes.
6. It does seem from Mr. Cusworth's chronology that, by August 2013, the wife and the children were back permanently here but it is relevant for me, for the purposes of deciding what support I should give for the next two months, to observe that the wife's connections with this country could hardly be described as "deep-rooted". Indeed, inasmuch as, since August, she has put down deeper roots here and lived a very high lifestyle, Mr. Cusworth may yet to be seen as having a fair point in saying that this is nakedly tactical by her.
7. So far as the litigation is concerned, on 15^th February 2012, two days after the wife had instructed English solicitors, the husband made a single declaration of talaq in the husband's home country ; I think this may have been done before a judge. The wife then filed her English petition on 12^th March 2012. That, it has to be said, is a rather remarkable document claiming that both the husband and the wife were habitually resident in England and Wales and claiming that the marriage had broken down by virtue of the misconduct of the respondent husband.
8. The husband must have been aware of this petition because, the day before he was actually served with it, he made a triple declaration of talaq on 29^th March 2012 and that did not in any way, according to the evidence from the jointly instructed expert, Mr. Edge, involve the court in the husband's home country at all. Although the court in the husband's home country operates under a family law passed in, I think, 2006, the husband's home country is nonetheless a conservative state where pure principles of Sharia law apply and where it is perfectly possible and permissible to obtain a divorce, other than by proceedings, through pronouncement of triple talaq, without involvement of the court at all. Moreover, according to the expert evidence of Mr. Edge, there are not even any sanctions for pronouncing bare talaq without the involvement of the court, in contrast to the position, surprising though it may seem, in Saudi Arabia, as was all explained in the decision H v. S [2012] 2 FLR 157 by HHJ Horowitz QC (sitting as a High Court judge).
9. The position is therefore that, as at 29^th March 2012, there was, according to Mr. Edge, a non-proceedings divorce pronounced by the husband in his home country, not involving the court in any shape or form. By virtue of s.46(2) of the Family Law Act 1986, that non-proceedings divorce will be entitled to recognition if, at the relevant date:

"(i) each party to the marriage was domiciled in ...[ the husband's home country ]...; or

(ii) either party to the marriage was domiciled in ...[ the husband's home country]... and the other party was domiciled in a country under whose law the divorce ... is recognised as valid; and

(c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding ...[29^th March 2012].

As to that latter specification, it would have been difficult, if not impossible, for the wife to have fallen foul of it, in view of the fact that, according to Mr. Yates' chronology, the wife moved permanently to live here on 22^nd April 2011. So recognition here would depend on it being shown that both parties were domiciled in the husband's home country in March 2012; alternatively, that the husband was domiciled there and the wife was domiciled in ZX, Mr. Edge having stated in a further opinion, that this bare talaq would be recognised in ZX. On the present state of the evidence it does seem to me that there is a strong case indeed for this non-proceedings divorce being entitled to recognition here.

10. The significance of this is that, if this divorce is entitled to recognition here, then, it being a non-proceedings divorce, the wife has no right to apply for relief under Part 3 of the Matrimonial and Family Proceedings Act 1984 because that is, for reasons which are not entirely apparent to me, confined only to cases where there has been a foreign divorce which derives from proceedings (see, in that regard, s.12(1)(a)).
11. I would say, almost parenthetically, that it is a surprising state of affairs, given that the Act was brought into effect to deal with the unfairness which arose from the pronouncement of talaqs abroad which may or may not be proceedings divorces. But, be that as it may, that is Parliament's will as expressed in the Act. So one can see that if the talaq in this case is a valid talaq, entitled to be recognised here, then the wife has no right to make a claim for herself for financial relief, either under the Matrimonial Causes Act or under the Matrimonial and Family Proceedings Act 1984 and will be confined only to a claim for child maintenance under schedule 1 of the Children Act 1989.
12. What in fact happened in the course of the litigation was this. I have mentioned that the wife's first petition was filed on 12^th March 2012, it containing, on its face, what seems to be an absurd claim that the husband was habitually resident here. She was given permission to discontinue that petition and to file a new one, which she did on 25^th April 2012, which claimed, in her case alone, habitual residence for at least one year.
13. On 25^th September 2012, there was an order made that there should be a trial of a preliminary issue as to whether the parties had already been divorced by a foreign divorce which is recognised in England and Wales, and provisions was made for that preliminary issue to be fixed; and that was duly fixed for 22^nd January 2013.
14. Although the wife, for reasons which are completely obscure, had decided to act in person in October 2012, she instructed a firm of solicitors, Anthony Louca, who are known to this court and they were in correspondence with the husband's solicitors in January 2013, when it was made known to them that the hearing of the preliminary issue was fixed for 22^nd January 2013. Indeed, Anthony Louca were writing to the husband's solicitors on 17^th January 2013 about various matters. However, for reasons which are not known, on 22^nd January 2013, at the hearing before District Judge Aitken of the preliminary issue, there was no attendance by the wife or her solicitors and, on that basis, the wife's petition was dismissed. Given that there was before the court at that point the preliminary issue as to whether the parties had been already divorced by reason of a foreign divorce recognised in England and Wales, it must follow, it seems to me, that the court there adjudicated that the parties had been validly divorced in the husband's home country and that that divorce was entitled to recognition. That was before the court, and the dismissal of the petition finally and conclusively dealt with that preliminary issue. Therefore it seems to me that, although I have not heard the fullest argument on it today, res judicata arose at that point. It would have been open to the wife to have appealed that within 14 days but she did not. After that, the husband relied, patently, on that order and went about his affairs on the basis that the court here had validly, conclusively and finally determined this issue.
15. However, on 28^th March 2013, the wife's present solicitors, Vardags, came on the record as acting for the wife and, for reasons which are not explained, it took them a further three months to make an application, on 28^th June 2013 - that is another appreciable period of delay I have to observe - to set aside and appeal the order of District Judge Aitken on 26^th March 2013. Then she also made an application on that day for relief for the two children, under schedule 1 of the Children Act. She also applied on that day for financial remedy for herself, in Form A.
16. The husband met that on 11^th July 2013 by an application made, I assume, under Part 4.4 of the Family Procedure Rules to strike out the wife's application to set aside or appeal the order of 22^nd January 2013 and that came before District Judge Aitken on 19^th July 2013, who struck out the wife's application and, in the course of argument, she observed that the wife was within her rights to issue a third petition. The significance of that comment I will analyse in a minute. The wife issued a third petition, which is basically a complete replication of the previous petition issued on 25^th April 2012, on 10^th September 2013.
17. When District Judge Aitken pronounced that the wife was at liberty to issue a third petition, she cannot have meant more than that the wife was not prevented from going to the counter, with a draft petition, paying the fee and having it issued. She was not purporting, in my judgment, to say anything about the fate of that petition, or purporting to say whether that petition was itself a permissible or legitimate procedural step for the wife to take, or whether it was in fact abusive.
18. The fact is that, in order for that petition to be allowed to proceed, it would seem to me that the wife would have to demonstrate why the decision of District Judge Aitken of 22^nd January 2013 did not amount to res judicata in respect of the preliminary issue which Deputy District Judge Marks had ordered to be tried on 25^th September 2012. Secondly, it would have to be shown that the delay by the wife did not give rise to an estoppel, preventing her from being allowed to pursue a third petition, in the circumstances which I have mentioned.
19. It seems to me that, in relation to both those aspects, the husband has a very strong case indeed particularly when taken in combination with the fact that, at the moment, I see no evidence at all to demonstrate that this was not a valid non-proceedings divorce entitled to recognition in this country. In such circumstances, I take the view that any claim for maintenance pending suit which flows from the wife's petition must be looked at very carefully indeed.
20. It is certainly true that the court has power to award maintenance pending suit, even where the jurisdiction of the court to pronounce a decree has been challenged; that has been recognised throughout the generations and stretches right back to the very dawn of the power of judicial divorce in 1857. It is referred to specifically in the case of Moses-Taiga [2005] EWCA Civ 1013 at paras 19 - 21.
21. However, I take the view - and, in this regard, I am fortified by having heard the very same words fall from the mouth of Ewbank J when he awarded maintenance pending suit in the well-known case of Z v. Z [1992] 2 FLR 291 - that, where the jurisdiction to pronounce a decree is in dispute, the court should act very cautiously indeed. The court is entitled, in my view, to have regard to the strength or otherwise of the claim that the court has jurisdiction, and the more uncertain the court is on a provisional basis that the court does have jurisdiction, the more cautious it should be.
22. In my judgment, in circumstances where it is very uncertain that the wife here would be entitled, by reason either of res judicata or estoppel, to pursue a third petition and, even if she were able to demonstrate that this marriage had not been previously dissolved in the husband's home country , I believe that, for herself, I should only award maintenance pending suit to relieve a real predicament of need, should one exist; and, I am not satisfied at all that, from her position, there is a real predicament of need, particularly having regard to the sums which I intend to award by way of "interim interim" child support. So I make no award in relation to maintenance pending suit for the wife; and for the same reason I make no award for a Legal Services payment order. In that latter regard I am specifically entitled, under s.22ZB(1)(c) to have regard to the subject matter of the proceedings, which does no more than reflect what Wilson LJ said in Currey v. Currey [2007] 1 FLR 946; and, given that I am extremely doubtful that the subject matter of the proceedings has any merit at all, I decline to award any sums by way of a costs allowance in respect of the wife's claims for herself.

Child Support

23. In this regard, I believe that both children are entitled to a good standard of living, having regard to the way which this family has lived since 2006; in S's case, for all of his life. I regard it as completely unreal to confine myself to the £30,000 a month which the husband says is the sole source of his income, being the pension which is paid to him by the ruler of his home country. The husband plainly has very substantial resources available to him, as is evidenced by the fact that, without any difficulty at all in February 2012, he was able to provide the wife with £1.8 million, the fate of which I have mentioned, and three payments of £200,000 for the wife to tide over herself and the children.
24. In my view, the monthly sum which the wife is seeking for herself and the children, of £38,000, inclusive of legal fees, is disproportionate, especially given that that sum inevitably includes a significant element for herself. In my view, the right figure to tide the wife over, both in respect of costs from hereonin and for maintenance for the children, between now and the next hearing, is £20,000 a month– to be paid on 1^st December/1^st January/1^st February.
25. I now address the figure of £207,417 which the wife has incurred in costs with Vardags. This I am very sure is largely referable to the wife's claim that there is jurisdiction in this court to consider whether her marriage exists or has been dissolved. I make no award for that element. In my judgment the right figure for me to allocate now in relation to past work for child maintenance is £50,000.
26. In addition, the father will pay school fees payable at the beginning of next term, in January, for the two children.
27. I make no further award for extra tuition.

LATER:

28. Mr. Cusworth has accepted that the husband will soon make an application under r.4.4 for the wife's third petition to be struck out. That will also be listed to be heard on 21^st February and I have asked counsel, over the lunch adjournment, to go to the Clerk of the Rules with my wish that that hearing be expanded to two days.
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