M v W

Permission to apply under Part III of the Matrimonial and Family Proceedings Act 1984 should be set aside where a foreign agreement has finally and fairly resolved the parties’ financial claims and the proposed challenge has no solid basis. The court should prevent Part III becoming a second bite of the cherry or a means of obtaining more favourable provision merely because English law might produce a different result. Applications to set aside permission should generally be confined to discrete preliminary points capable of delivering a knock-out blow. A maintenance creditor under Article 3 of the Maintenance Regulation includes a prospective creditor or applicant seeking maintenance for the first time.

The wife obtained without-notice permission from Baker J to apply under Part III of the Matrimonial and Family Proceedings Act 1984 for financial provision following the parties’ New Zealand divorce. The parties had entered into a New Zealand separation and relationship property agreement, supported by disclosure and independent legal advice, which dealt with property, maintenance and child-related obligations.

The husband applied to set aside permission. He argued that the court lacked maintenance jurisdiction under Article 3 of the Maintenance Regulation and that the agreement was a full and final settlement, making the wife’s proposed claim an impermissible second bite of the cherry.

1. The jurisdiction objection failed. Article 3 of the Maintenance Regulation was satisfied because a maintenance creditor includes an applicant who may become a creditor. The court therefore had jurisdiction to hear the claim.

2. Permission granted without notice may exceptionally be reconsidered at an early stage where there is a discrete preliminary point capable of preventing unnecessary disclosure and costs. The governing approach, derived from Agbaje, is that the applicant must show a solid basis for proceeding and that permission should be set aside where the opposing point is a knock-out blow.

3. Baker J had not been given, or had not appreciated, the full legal effect of the New Zealand agreement. It had been entered into with independent legal advice, acknowledged disclosure and the formalities required by New Zealand law. It therefore had the practical effect of a final consent order in resolving the parties’ financial claims. The earlier permission was set aside and the question of permission was reconsidered afresh.

4. The wife’s proposed challenges based on pension valuation, pressure and non-disclosure were extremely weak. A difference between New Zealand and English pension valuation methodologies did not justify reopening the settlement. The evidence did not establish undue pressure, and the agreement’s express terms and the wife’s legal representation made the non-disclosure argument virtually unarguable.

5. The proper forum for challenges to the agreement was New Zealand, where the agreement could be set aside on the asserted grounds. The wife’s present financial difficulty, including the expenditure of her capital, did not justify a second full inquiry into the husband’s circumstances. Mere disparity between the foreign settlement and a possible English award was insufficient.

6. Permission was refused. The court also cautioned that the wide jurisdiction under Part III must not be used to pressure a respondent into making further provision after financial matters have been properly and finally concluded abroad.

The judgment describes a prior without-notice order by Baker J granting permission on 30 July 2013. The husband’s application to set aside that order was determined by Coleridge J in this judgment.