Schofield v Schofield

On an application for leave to seek financial relief after a foreign divorce, the court must consider whether there is a substantial or solid ground for the application. That threshold cannot be converted into a requirement that the applicant show at least a 50 per cent probability of obtaining a substantial final order. At the leave stage, the court should not determine the eventual apportionment or quantum on limited evidence. The relative significance of an overseas pension must be assessed against the parties’ other assets and resources. Public policy favours judicial collaboration where the divorce court cannot divide a pension rooted and funded in England, so the applicant is not deprived of a potential entitlement.

The parties, respectively British and German, were divorced in Germany on 30 May 2007. Their capital assets were divided equally, but the German court lacked jurisdiction to make a pension-sharing order concerning the husband’s British Army pension and indicated that the issue could be dealt with in England.

The wife therefore sought leave under Part 3 of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief. Mostyn J dismissed the application, applying the approach formulated in CG v IF [2010] EWHC 1062 (Fam), under which a substantial or solid ground required at least a 50 per cent probability of obtaining a substantial order. He also considered the pension financially insignificant. The central issues were whether that approach was correct and whether public policy supported international judicial collaboration.

Appeal allowed unanimously. Fresh evidence concerning German law and the value of the Army pension was admitted.

1. Mostyn J had wrongly converted the requirement to show a substantial or solid ground into a numerical test requiring a probability of at least 50 per cent that a substantial order would be obtained. The Court of Appeal’s decision in Traversa v Freddi had clearly rejected that gloss. Its application in the present case was therefore plainly wrong, and the appeal succeeded on that ground.
2. Even if the gloss had been permissible, the appeal would have succeeded on the facts. The pension appeared to have a technical value of about £280,000, in addition to a possible terminal payment of about £40,000. Compared with the parties’ modest capital assets and the wife’s limited earnings, it was significant. The eventual apportionment and quantum required fuller evidence and were not matters to be determined finally at the leave stage.
3. Public policy also supported the application. Where a pension is rooted and funded in one jurisdiction, while the divorce and ancillary financial proceedings take place in another, courts should collaborate so that a spouse is not deprived of a potential entitlement. The German court had expressly been unable to deal with the English pension and had left the matter for determination in England. Refusing leave on the basis that the pension was irrelevant would therefore have acted against that general principle.
4. The court noted that the Family Proceedings Rules provide for applications for leave to be listed without notice, although the judge below had adjourned this application for an on-notice hearing as a matter of case management. The order dismissing the wife’s originating summons was set aside.

• Court of Appeal (Civil Division): [2011] EWCA Civ 174; appeal allowed and fresh evidence admitted.
• Decision below: Mostyn J, 20 May 2010; the wife’s originating summons seeking leave to apply for financial relief was dismissed.