Cg v If

Leave under section 13 of the Matrimonial and Family Proceedings Act 1984 requires both prima facie jurisdiction and a substantial ground for financial relief. In this context, a substantial ground is a solid ground: the applicant’s prospects of obtaining a substantive order should be at least 50 per cent.

A claim involving any material element of satisfying needs is a maintenance claim for the purposes of the Lugano Convention, even if framed as a claim to share matrimonial property. Recognition of a foreign judgment disposing of maintenance, and the Convention’s jurisdictional requirements, may therefore prevent the claim proceeding. The English ancillary-relief exercise is holistic, and needs, compensation and sharing are rationales rather than free-standing heads of claim.

The applicant sought leave under section 13 of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief after a Swiss divorce. The parties had transferred their London flat into the respondent’s sole name and had subsequently obtained a Swiss consent divorce order recording that their property claims were settled and that neither would seek maintenance.

The applicant alleged that the transfer and Swiss settlement resulted from mistake and sought a share of the flat. The respondent opposed the application. The central issues were whether jurisdiction existed, whether the claim contained a maintenance element engaging the Lugano Convention, and whether there was a substantial ground for granting leave.

1. Leave threshold. The court had to be satisfied that jurisdiction was established at least prima facie and that there was a substantial ground for the application. In this context, substantial meant solid. The judge held that this required prospects of obtaining a substantive order of at least 50 per cent. The section 16 factors, and the likely exercise of discretion under section 18 and section 25 of the Matrimonial Causes Act 1973, were relevant at the leave stage.
2. Procedure. Although the application was formally ex parte, it was appropriate to read the respondent’s evidence and hear submissions. Where the prospects appeared to be around the threshold, the court should be prepared to adjourn the application for an inter partes hearing, applying the guidance in Agbaje v Akinnoye-Agbaje [2010] UKSC 13.
3. Lugano Convention. Switzerland was a Lugano Convention country. A Swiss judgment waiving maintenance was entitled to near-automatic recognition, and the foreign judgment could not be reviewed as to its substance. If the claim was for maintenance, it could not proceed in conflict with that judgment. Section 15(2) of the 1984 Act also modified the domestic jurisdictional requirements; on the facts, neither party was resident in England and Wales.
4. Characterisation of the claim. Under Van den Boogaard v Laumen and Moore v Moore, the autonomous question was whether the provision was designed to enable a spouse to provide for himself or herself, or whether needs and resources were considered. A transfer or award concerned property rights only where it was solely concerned with division of property. The applicant’s claim would materially rely on his limited capital and future security. It therefore had a maintenance element.
5. Merits. Even without the Lugano impediment, the applicant was very unlikely to establish that he misunderstood the TR1 transfer or the Swiss settlement. The post-nuptial arrangement was supported by a foreign court order, and the unexplained delay of about 17 months after the respondent asserted sole ownership further weakened the application.

The originating summons was dismissed.

First-instance decision. No prior appellate decision is stated in the judgment.