Vasilyeva v Shemyakin

At the leave stage under Matrimonial and Family Proceedings Act 1984, “substantial ground” means a solid ground. The threshold is higher than a serious issue to be tried or a good arguable case, but it does not require a prediction that the substantive application will succeed. The court should avoid a detailed determination of disputed facts or a rigorous evaluation of the section 16 and section 18 factors. A single significant factor, or a combination of factors, may establish solidity. Leave should be refused only where the claim is plainly unmeritorious or susceptible to a knockout blow. The possible effect of a foreign financial order, inadequate disclosure and substantial undisclosed assets may together justify leave.

The applicant sought leave under section 13 of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief in England and Wales following the parties’ Russian divorce and financial proceedings. The Russian court transferred specified marital assets to her. She contended that the Russian process had not investigated the respondent’s full wealth and that substantial assets remained undisclosed. The respondent relied on the Russian order, the parties’ connections with Russia, and the applicant’s alleged delay and lack of substantive case.

The central issue was whether the applicant had shown a substantial ground for making a Part III application, without the court determining the ultimate appropriateness or merits of financial relief.

1. The application for leave was granted. The applicant had established a substantial ground within section 13(1) of the Matrimonial and Family Proceedings Act 1984.

2. Following Agbaje v Agbaje [2010] 1 AC 628 and Traversa v Freddi [2011] 2 FLR 272, “substantial” means “solid”. It is a threshold above a serious issue to be tried or a good arguable case, but it is not equivalent to showing a greater than 50 per cent prospect of success. The court must filter out wholly unmeritorious claims while avoiding a full merits hearing.

3. The section 16 factors are relevant to the eventual question whether England and Wales is an appropriate venue, and sections 17 and 18 concern the substantive relief decision. At the leave stage they should be considered only to the extent necessary to decide whether the proposed application has substance. The section 16 list is not exhaustive.

4. The court may rely on a constellation of factors. It should not attempt to resolve contested evidence or conduct the detailed disclosure and valuation exercise required at the substantive stage. A foreign order does not automatically deliver a knockout blow where there is a real issue about the assets considered, the adequacy of disclosure, or whether the order represented a final settlement.

5. The respondent’s long residence in England, the child’s residence here, uncertainty about disclosure, offshore assets, the circumstances and scope of the Russian proceedings, and the possibility that substantial wealth had not been considered together created a viable and substantial ground. A simple top-up claim based only on disparity would have been weak, but the applicant’s wider case concerned assets potentially omitted from the Russian process.

6. The court did not determine whether English relief would ultimately be appropriate or whether an order should be made under sections 17 and 18. The question of security for costs under section 13(3) was adjourned to a further hearing, which would also address directions.

First-instance application. The judgment records that the applicant issued the Part III leave application on 7 December 2018, following an ex parte hearing before Mr Justice Hayden on 10 December 2018. The application was then heard inter partes by Mr Justice Williams.