MWH v GSH

Part III of the Matrimonial and Family Proceedings Act 1984 does not permit an application for financial relief following a Jersey divorce. Jersey is part of the British Islands and is therefore not an overseas country within section 12(1)(a). Where statutory language is precise and unambiguous, the court must apply its natural and ordinary meaning. The mischief rule cannot justify extending or rewriting the statutory jurisdiction. Any change to the scope of the provision is a matter for Parliament.

The parties had divorced in Jersey and entered into a consent order providing for a clean break and division of the former matrimonial home. The wife subsequently applied in England and Wales under Part III of the Matrimonial and Family Proceedings Act 1984, seeking permission to pursue financial relief including a pension sharing order.

Cobb J granted permission without notice. The respondent applied out of time to set aside that permission. The issues before Cohen J were whether the English court had jurisdiction under section 12 and, if so, whether the respondent’s application to set aside could be entertained.

1. Jurisdiction. Section 12(1)(a) permits an application for financial relief only where the overseas divorce was obtained in an overseas country. Section 27 defines an overseas country as a country or territory outside the British Islands. The British Islands include the United Kingdom, the Channel Islands and the Isle of Man. Jersey is therefore not an overseas country, and the statutory gateway to relief was unavailable.
2. Statutory construction. The court rejected the submission that the Law Commission’s report, the mischief rule or the golden rule justified extending the statutory language because Jersey lacked pension-sharing powers. The court was being asked to go beyond construction and effectively rewrite the statute. There was no inconsistency or absurdity in applying the enacted wording. Following the approach stated in the Sussex Peerage case, precise and unambiguous words must be given their natural and ordinary meaning. Any amendment was for Parliament.
3. Time for setting aside. The order granting permission did not contain the statement required by Family Procedure Rules 2010, rule 18.10(3), informing the respondent of the right to apply to set it aside or vary it. The respondent could therefore rely on not having known either of that right or of the seven-day period in rule 18.11(2). Rule 4.1 empowered the court to extend time, and it was plainly appropriate to do so.
4. The respondent’s application was granted. The permission granted by Cobb J was set aside and the wife’s application was struck out for want of jurisdiction. Costs followed the event and were assessed at £11,000, payable from the wife’s share of the sale proceeds.

The judgment is a first-instance decision. It records that Cobb J had previously granted permission to apply for financial relief, but does not give a citation for that order. Cohen J extended time, set aside the permission and struck out the application.