Z v Z & Ors (Rev 1)

In an application under Part III of the Matrimonial and Family Proceedings Act 1984 after a foreign divorce, the court must decide whether an English order is appropriate in all the circumstances. The enquiry is not confined to the circumstances existing when the foreign order was made. It may include the applicant’s connections with England, the provision made abroad, delay, hardship or injustice, the availability of property in England and the enforceability of relief. A foreign settlement and apparent clean-break agreement are important but not automatically conclusive. Disparity with the provision that an English court might have made is insufficient by itself. The application succeeded at the threshold stage, but the court emphasised that delay, the prior compromise and the applicant’s needs would substantially restrict any eventual relief.

The applicant, a Russian national, sought financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 after her Russian divorce and a Russian consent order providing approximately US$10 million. She sought relief concerning the family home and another London property held through trust structures, together with provision for future needs. The respondent relied on the foreign order as a comprehensive clean break, the applicant’s delay of more than five years and the adequacy of the foreign provision. The court determined Stage I: whether it was appropriate for an English court to make an order under section 16, leaving the substantive relief for Stage II.

1. Stage I enquiry. The court applied sections 16 to 18 of the Matrimonial and Family Proceedings Act 1984 in the light of Agbaje v Agbaje [2010] UKSC 13. Section 16 requires a broad survey of all the circumstances. The statutory factors are non-exhaustive and overlap with the matters relevant to the eventual exercise of the section 17 powers.
2. The court was not confined to asking what an English court would have ordered in 2009. The financial benefit secured abroad, the foreign order’s effect, the parties’ connections, the availability of relevant English property, the respondent’s changed resources and the delay were all relevant. Hardship and injustice were relevant considerations, although neither was a precondition. Mere disparity between foreign and English provision would not suffice.
3. The Russian agreement and order were important evidence of finality and personal autonomy, but they did not automatically prevent a Part III order. The court had to assess fairness in the circumstances existing when the application was made. The applicant’s understanding and the wording of the order indicated that “property in trusts” and the worldwide clean-break provisions extended to the relevant trust interests, although the ultimate effect on any nuptial settlement was reserved for Stage II.
4. The evidence showed that Russian law did not recognise trust property in the relevant sense and that an application for the Russian court to apply English or Bermudan law would have been theoretically possible but practically remote. The availability of that theoretical route did not materially undermine the appropriateness of an English enquiry.
5. Although the applicant delayed for more than five years, the delay had to be assessed holistically. Her continuing care of the children, psychological difficulties, legal advice and the continuing concern about security of occupation were relevant. By the narrowest margin, the exceptional combination of circumstances made it appropriate for an English court to make an order.
6. The decision did not determine the Stage II relief. Any order would have to reflect the delay, the applicant’s knowledge that she had surrendered future maintenance claims, the prior Russian provision and her needs. The ambitious claim for the Kensington House, another property and £8 million was not provisionally supported. The proceedings were to continue to Stage II unless resolved.

Not an appeal. The judgment determined the Stage I issue in an application for financial relief after a foreign divorce. The substantive assessment of relief under section 17 was left for Stage II.