BAJ v RRA

When deciding whether to grant leave to seek financial relief after a foreign divorce, the court must apply the statutory requirement that there be a substantial ground for the application. That threshold is intended to exclude truly hopeless cases. It does not require the applicant to show a probability of success of 50 per cent or more. A first-instance judge must apply the binding guidance of the Court of Appeal, even where the judge considers that guidance illogical or considers an earlier personal formulation preferable.

The applicant sought leave under section 13 of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief following the parties’ divorce in Pakistan. The parties had lived in England, where the matrimonial home was situated. The applicant wished to claim a share of the equity and potentially other matrimonial assets.

The judge considered the meaning of the statutory requirement for a substantial ground. His earlier decision in CG v IF had adopted a probability threshold, but that approach had been rejected by the Court of Appeal in Traversa v Freddi. The central issue was whether the present claim was truly hopeless or had a sufficient substantial ground to justify leave.

1. Leave granted. The application was not truly hopeless and therefore satisfied the applicable threshold under section 13 of the Matrimonial and Family Proceedings Act 1984.
2. The statutory expression substantial ground does not require the court to be satisfied that a substantive award is more likely than not. The judge’s earlier formulation in CG v IF, requiring satisfaction on a probability scale of 50 per cent or more, was rejected by the Court of Appeal in Traversa v Freddi [2011] 2 FLR 272.
3. The applicable test was the considerably lower threshold of excluding truly hopeless cases. Although the judge remained unrepentant about his earlier reasoning, he was bound to apply the Court of Appeal’s approach. Applying that approach, the applicant’s claim concerning the matrimonial home, and potentially chattels and jewellery, had a substantial ground.
4. The application was directed to a district judge at the Principal Registry under rule 8.28 of the Family Procedure Rules 2010. Any substantive application would proceed as a financial remedy application under rule 2.3(c), with Part 9 applying and Forms E and an FDR required.