Potanin v Potanina

Leave to seek financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 requires a substantial, or solid, ground. The jurisdiction is not a means of correcting perceived deficiencies in foreign law or topping up a foreign award to an English level merely because the English award would be higher.

The court must consider all the circumstances, including both parties’ connections with England and Wales, the connection with the country of divorce, the provision made abroad, available foreign remedies, enforceability and the time since divorce. Where the claim includes maintenance and jurisdiction arises under the Maintenance Regulation, absence of connection alone cannot justify dismissal, but the other section 16 factors remain relevant. Material misleading of the court at the without-notice leave hearing may justify setting aside leave.

The wife, a Russian national, obtained without-notice leave under Part III of the Matrimonial and Family Proceedings Act 1984 to seek financial relief after extensive divorce and financial litigation in Russia. The husband applied under FPR 18.11 to set aside that leave.

The wife alleged that the Russian courts had failed to account for beneficially owned assets, had acted unjustly, and had made inadequate provision. The court found that the Russian courts had consistently applied Russian law, that the wife had received substantial provision, and that material factual and legal matters had not been disclosed at the original hearing. The issues were whether the leave should be set aside and, on reconsideration, whether there was a substantial ground for a Part III application.

1. Leave set aside. The original leave was granted after material matters had not been placed before the court. These included the nature and extent of the Russian proceedings, the Russian law concerning beneficial ownership, the absence of a needs-based claim in Russia, the wife’s limited English connections and the correct statutory guidance. The misrepresentations were material, whether intentional or not. The court therefore set aside the leave and reconsidered the application afresh.
2. Test for setting aside leave. The expressions “knockout blow”, “compelling reason” and absence of a “solid basis” substantially described the same threshold. Minor inaccuracies would not suffice, but material misleading of the court could justify revocation of leave.
3. Section 16 jurisdiction. The court had to consider whether England and Wales was an appropriate venue, having regard to all the circumstances and the matters in section 16(2). The parties’ lifelong connection with Russia, their lack of significant marital connection with England, the extensive Russian litigation, the provision already made and the absence of English assets weighed heavily against the application. The court was not entitled to focus on needs to the exclusion of the other factors.
4. Maintenance jurisdiction. Section 16(3) prevented dismissal of a maintenance claim solely because the applicant lacked a connection with England and Wales where the Maintenance Regulation applied. It did not make sections 16(1) and 16(2) irrelevant. Habitual residence required weight, but the claim could still be dismissed for reasons relating to the other statutory considerations.
5. Substantial ground. The foreign award was low by English standards and might not have met the wife’s needs had the parties divorced in England. That disparity, hardship and alleged injustice did not, in the circumstances, make England the appropriate venue. Part III was not available to conduct divorce tourism or to correct the application of foreign law.
6. Disposition. There was no solid basis for an order. The application for leave to bring a claim under Part III was dismissed.

First-instance decision. The judgment records that the wife wished to seek permission to appeal.