Hewitson v Hewitson

Part III of the Matrimonial and Family Proceedings Act 1984 provides a limited remedy to mitigate disadvantage caused by inadequate financial relief following a foreign divorce. It does not confer an additional advantage unavailable after an equivalent English divorce.

On an application for leave under s13, the likely outcome of the proposed financial-relief application is highly relevant. A final and implemented foreign clean-break order should ordinarily prevail. Subsequent cohabitation, reliance, detriment or alleged fresh obligations do not by themselves justify reviewing or supplementing that order. Where the proposed application has no realistic prospect of success, leave must be set aside.

The former wife and former husband married in California and divorced there in 1987. A comprehensive consent order provided spousal support and capital payments and was intended to achieve a final clean break. The order was implemented and was neither appealed nor varied.

After later periods of cohabitation, the former wife alleged that the former husband had induced her to take financial steps to her detriment and sought leave to apply for financial relief in England under Part III of the Matrimonial and Family Proceedings Act 1984. Wall J granted leave ex parte and later refused to set it aside. The central issue was whether subsequent cohabitation could justify reopening or supplementing the final Californian order.

Disposition. The Court of Appeal unanimously allowed the appeal, set aside the grant of leave under s13, and refused leave to appeal.

1. Leave threshold. Butler-Sloss LJ delivered the leading judgment. The statutory language required no elaborate construction. Following the approach in Holmes v Holmes [1989] Fam 47 and Z v Z [1992] 2 FLR 291, the likely outcome of the proposed application was highly relevant when deciding whether there was substantial ground for it. The application’s prospects were nil.
2. Purpose of Part III. The legislation was intended to remedy the limited mischief of inadequate or absent financial relief following a foreign divorce. It was not intended to act as an appellate jurisdiction over a competent foreign court or to give foreign-divorce applicants advantages unavailable under domestic matrimonial law.
3. Final foreign order. A comprehensive, final and implemented Californian clean-break order should prevail save in exceptional circumstances. Comity between courts of comparable jurisdiction and the need for finality made it wrong to review or supplement that order merely because the former spouses later resumed a relationship. The later relationship did not revive a satisfied right to financial provision.
4. Domestic comparison. Leggatt LJ agreed that the wife’s financial provision had been satisfied by the Californian order and had not been resuscitated by subsequent events. Balcombe LJ agreed with Butler-Sloss LJ and emphasised that post-divorce cohabitation was not intended to generate matrimonial financial relief, whether the divorce was foreign or English. Reservations were expressed about S v S (Financial Provision: Post-divorce Cohabitation) [1994] 1 FLR 228.
5. Obiter procedure. Butler-Sloss LJ noted that the procedure for an ex parte application for s13 leave followed by an inter partes challenge might usefully be reviewed.

• Court of Appeal: The appeal was allowed on 27 September 1994, with reasons reserved. On 6 October 1994 the court formally allowed the appeal, set aside the grant of leave and refused leave to appeal.
• High Court: Wall J granted ex parte leave on 17 December 1993. On 24 May 1994 he refused to set aside that leave but granted permission to appeal.