Johnson v Takieddine & Anor

Under Part III of the Matrimonial and Family Proceedings Act 1984, the court must consider both whether England and Wales is an appropriate venue and whether financial relief should be granted. These are inter-related duties requiring a flexible assessment of all the circumstances and the statutory factors. The jurisdiction may be used to provide tailored relief without creating an improper conflict with proceedings or prospective proceedings abroad.

A claim for a share of marital wealth is not a maintenance claim merely because it arises from a divorce. Where property is purchased in a company’s name with funds provided by an individual, a resulting trust may arise. Ownership and control of the company alone are insufficient, but the court may infer beneficial ownership from the acquisition, occupation, absence of evidence of a loan or subscription, and non-participation by the company.

The wife applied under Part III of the Matrimonial and Family Proceedings Act 1984 following divorce proceedings in France. She sought relief concerning Warwick House, a London property legally owned by Warwick Estates Limited, and applied to enforce a capitalised maintenance award made by the French court.

The French courts had determined that the parties were subject to a community-property regime and were entitled to equal shares of their marital wealth. The French judicial liquidation process had not commenced. The central questions were whether the English court had jurisdiction, whether it should exercise that jurisdiction, whether the husband beneficially owned Warwick House, and what order should be made.

1. The application for leave was not set aside. The wife’s presentation of the French liquidation process could have been clearer, but the omission was insufficient to undermine the grant of leave.
2. The court had jurisdiction under section 15 of the Matrimonial and Family Proceedings Act 1984. The wife’s claim was for a share of marital wealth, not maintenance. Accordingly, the relevant European instruments did not exclude jurisdiction. There were also no pending proceedings in France engaging lis pendens provisions. Prazic v Prazic [2006] 2 FLR 1128 and EA v AP [2013] EWHC 2344 (Fam) were materially distinguishable.
3. Neither issue estoppel nor the principle in Henderson v Henderson prevented the claim. The earlier possession proceedings concerned whether a share sale agreement was genuine and effective. Beneficial ownership of Warwick House had not been determined. The principles were applied in accordance with the guidance in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160 and Arnold v National Westminster Bank plc [1991] 2 AC 93.
4. Warwick House and, so far as applicable, its contents were beneficially owned by the husband under a resulting trust. The purchase funds came from him; the property was occupied rent-free as a matrimonial home; alleged occupation agreements were shams; and there was no convincing evidence that the funds were loans, capital subscriptions or shareholder advances. The reasoning in Prest v Petrodel Resources Ltd [2013] UKSC 34 supported that conclusion, although company ownership and control alone did not establish beneficial ownership.
5. Sections 16, 17 and 18 of the 1984 Act imposed inter-related duties. The court had to balance the connections with England and France, the French determination of equal sharing, the existing maintenance award, the absence of a commenced liquidation process, and the risk of improper conflict. It was appropriate to make a tailored order awarding the parties notional half shares in the equity of Warwick House.
6. The wife could enforce English costs orders and the outstanding French capitalised maintenance award against the husband’s notional half share. This provided an interim implementation and enforcement of the French determination without deciding matters likely to fall within the French liquidation process. The court considered the approach in Agbaje v Agbaje [2010] 1 FLR 1813 and distinguished the general guidance in Jordan v Jordan [1999] 2 FLR 1069 because of the unusual circumstances.

First-instance determination in the High Court (Family Division). The judgment records earlier French and English proceedings but does not state an appeal from the present decision.