Moore v Moore

A claim involving a lump sum or property transfer falls within “maintenance” under the European jurisdiction regime according to its purpose, not its domestic label or form. Provision intended to support a spouse may constitute maintenance. Provision concerned solely with dividing matrimonial property does not.

Leave to seek financial relief after an overseas divorce requires a substantial ground for the application. The court must consider all the circumstances and the statutory venue factors. Hardship or injustice is not a prerequisite. An unexercised foreign remedy is significant but not automatically determinative.

Following a Spanish divorce, the wife obtained permission to seek financial relief in England under Part III of the Matrimonial and Family Proceedings Act 1984. McFarlane J dismissed the husband’s application to set that permission aside.

The husband appealed. He contended that his earlier Spanish application concerned maintenance within Council Regulation (EC) 44/2001, that the English proceedings should be stayed, and that permission under the 1984 Act should have been refused. The central issues were the proper characterisation of the Spanish application, the effect of the pending Spanish appeal and whether the judge had lawfully exercised his discretion.

1. The appeal was dismissed. The husband’s Spanish application was not a matter relating to maintenance under Article 5.2 of Council Regulation (EC) 44/2001. Its essential purpose was the adjustment and sharing of the parties’ wealth on the husband’s proposed terms. References to the wife’s needs and standard of living did not alter that characterisation.

2. Whether provision constitutes maintenance is determined autonomously under the European regime. Neither its national-law label nor its form is decisive. A lump sum or property transfer may be maintenance where its purpose is to support a spouse, including by securing a predetermined income. Provision solely concerned with dividing matrimonial property falls outside the maintenance jurisdiction: Case C-220/95 Van den Boogaard v Laumen [1997] ECR I-1147, [1997] QB 759 applied.

3. Because the Spanish application was outside Article 5.2, Articles 27 and 28 did not require the English proceedings to be stayed. The court nevertheless considered that Article 27 would continue to operate where the first-seised court had declined jurisdiction but an appeal against that decision remained pending. That conclusion was not necessary to the result.

4. Sections 13 and 16 of the Matrimonial and Family Proceedings Act 1984 must be read together. The applicant must show a substantial ground for applying. Hardship or injustice is not required. All the circumstances must be considered, including the listed connections, comity and forum considerations.

5. McFarlane J had correctly treated the wife’s former opportunity to seek relief abroad under section 16(2)(f) as significant but not determinative. The parties’ overwhelmingly English connections, the location of most of the wealth and the application of English substantive law by the Spanish court justified permission. The governing law was relevant to the parties’ respective connections under sections 16(2)(a) and (b).

1. Court of Appeal (Civil Division): By [2007] EWCA Civ 361, dismissed the husband’s appeal with costs.
2. High Court, Family Division: McFarlane J confirmed the wife’s permission to apply under Part III of the Matrimonial and Family Proceedings Act 1984 and dismissed the husband’s application to set it aside.
3. High Court, Family Division: Baron J had granted the wife permission without notice on 11 July 2006.