Barnett v Barnett

Leave to apply for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 should be granted where there is a substantial ground for the proposed application, even if the claim is modest. Jurisdiction may arise from an applicant’s English domicile. The statutory allocation rules permit the court, when granting leave, to direct that the substantive proceedings be issued and allocated in an appropriate local family court. The need to use local judicial resources effectively may displace the starting allocation to a judge of High Court level. Routine and uncomplicated applications should generally be dealt with locally unless special features, complexity or substantial assets justify High Court involvement.

The applicant, formerly married to the respondent for over 40 years, obtained a divorce in Bulgaria. She sought leave under section 13 of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief in England, principally in relation to the respondent’s British miner’s pension. The respondent did not appear. The issues were whether the court had jurisdiction, whether there was a substantial ground for the proposed application, and where any substantive proceedings should be issued and allocated.

1. Leave was granted under section 13 of the Matrimonial and Family Proceedings Act 1984. The proposed claim concerned a pension which the Bulgarian court had apparently regarded as outside its jurisdiction. Although the case was financially small, there was a substantial ground for an application for financial relief.

2. The court had jurisdiction under section 15(1)(a). The applicant’s evidence established a strong argument that she retained her English domicile of origin, despite living in Bulgaria and intending to return to England when financially able.

3. Under section 27, “the court” for Part III purposes means the High Court or the family court. Rules 14 and 15 of the Family Court (Composition and Distribution of Business) Rules 2014, read with Schedule 1, required the substantive proceedings initially to be allocated at High Court judge level because the parties did not consent.

4. That starting position was subject to rule 15(2). The court could make a judicial allocation decision directing issue and future allocation in a local family court where that would make the most effective and efficient use of judicial resources. The substantive application was therefore directed to be issued in the family court at Stoke-on-Trent and allocated to a district judge, subject to later transfer if appropriate.

5. The judge added wider procedural observations. In routine, uncomplicated Part III applications, a local family court should consider at the earliest stage whether rule 15(2) displaces the High Court-level starting point. Applications could generally be considered on paper with minimal formality. The apparent restriction in rule 8.26(a) of the Family Procedure Rules 2010, requiring a non-consent application for leave to be heard by a circuit judge or recorder rather than a district judge, was identified as an anomaly for consideration by the rules committee.