Traversa v Freddi

The threshold for leave to seek financial relief after an overseas divorce is modest. A claim must have a solid basis and must be more than merely arguable, but the leave court should exclude only plainly unmeritorious claims. It should consider the overall merits without conducting the rigorous evaluation reserved for trial.

The existence of a foreign marital property regime does not defeat leave where its fairness in current circumstances requires investigation. EU rules governing maintenance do not confer exclusive jurisdiction over the property consequences of divorce. A hybrid financial order is severable: only its maintenance component falls within the relevant enforcement regime.

Following an Italian marriage and divorce, the husband sought leave under Part III of the Matrimonial and Family Proceedings Act 1984 to apply in England for financial relief, principally a transfer of the former matrimonial home. Bodey J dismissed the application by applying the Court of Appeal's restrictive approach in Agbaje.

After the Supreme Court reversed that approach, permission to appeal out of time was granted. The Court of Appeal had to decide whether the husband had a substantial ground for applying, whether the Italian separation-of-property election defeated the claim at the leave stage, and whether European jurisdiction rules concerning maintenance prevented an English property claim.

1. Appeal allowed and leave granted. The husband had established a substantial ground for making a Part III application. The earlier judge's approach was erroneous in light of the Supreme Court's subsequent decision in Agbaje. The claim was to proceed under directions to be agreed or determined by the court.

2. The section 13(1) filter excludes plainly or wholly unmeritorious claims. A substantial ground means a solid ground. Although the leave court must consider the overall merits, it should not undertake the rigorous assessment required at the substantive hearing. The later statutory hurdles should ordinarily be left to the trial judge unless it is obvious that the applicant will fail at one of them. Mostyn J's proposed requirement of at least a 50% prospect of obtaining an order was inconsistent with the authoritative guidance.

3. The Italian separation-of-property election did not provide a decisive answer at the leave stage. It was a positive mutual election and no initial unfairness was alleged. Whether it remained fair to apply it rigorously in the parties' present circumstances was nevertheless a matter for the substantive hearing.

4. The proposed property-transfer application was not caught by article 27 of Brussels I. Neither spouse had sought spousal relief in Italy, while the Italian child-maintenance order had neither been varied nor enforced. Any discretionary stay under article 28 was for the trial judge.

5. Brussels I does not confer exclusive jurisdiction over the property consequences of divorce. Where a financial order combines maintenance and property division, the order is severable. Only the component properly characterised as maintenance is enforceable under Brussels I. The contrary approach in CG v IF was rejected.

6. Thorpe and Munby LJJ further stated that applications for leave under the then-current rules had to be made without notice. Leave should be set aside only where the respondent can demonstrate a decisive or “knock-out” objection; otherwise the challenge should be dismissed or heard with the substantive application. Munby LJ interpreted the forthcoming Family Procedure Rules 2010 as retaining a without-notice starting point, subject to the court's power to require an inter partes hearing. Rimer LJ agreed with both judgments.

1. Court of Appeal (Civil Division): The appeal was allowed and leave under section 13(1) of the Matrimonial and Family Proceedings Act 1984 was granted: [2011] EWCA Civ 81.
2. High Court, Family Division: Bodey J dismissed the husband's application for leave on 30 April 2009. He applied the then-binding restrictive approach of the Court of Appeal in Agbaje. No neutral citation for his decision is stated.