Barbara Kay Lockwood v Adam Raphael Greenbaum

On an application for permission to pursue financial relief after an overseas divorce, the statutory threshold is whether there is a substantial ground, meaning a solid ground, for the application. The applicant need not establish substantial connections with England and Wales as a separate precondition. Jurisdiction through a statutory gateway must be established, but the parties’ connections with England and Wales are one of the factors under section 16 and have no automatic priority. Where the first-instance judge applies the wrong legal test, the appellate court may reconsider the discretionary decision and make the appropriate order itself. The passage of time is relevant but does not necessarily defeat permission, particularly where a foreign court could not account for an English matrimonial home while taking account of liabilities connected with it.

The appellant sought permission under Part III of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief following the parties’ divorce in New Zealand. New Zealand proceedings had addressed maintenance and relationship property, including a debt said to relate partly to renovation of the parties’ former English home, but the New Zealand court could not determine the value of that English property.

Recorder Sirikanda refused permission, holding that the parties lacked substantial connections with England and Wales and taking account of the foreign proceedings and the respondent’s offer to waive the debt. Permission to appeal was granted. The central issue was whether substantial connections with England and Wales were required before permission could be granted.

1. Appeal allowed. The decision refusing permission was set aside. Permission was granted to the appellant to apply for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984. The respondent was ordered to pay the costs below and on appeal on the standard basis.
2. Under section 13(1), the court must not grant leave unless there is a substantial ground for making an application for financial relief. Following Agbaje v Agbaje, that means a solid ground. The threshold is higher than a serious issue to be tried or a good arguable case, but it is not high. The purpose of the filter is to prevent wholly unmeritorious claims being pursued oppressively.
3. The court must establish jurisdiction through one of the gateways in section 15(1). Once a gateway is established, however, there is no additional requirement that the applicant demonstrate substantial connections with England and Wales. The connection with this jurisdiction is one of the matters to which section 16(2) requires regard, alongside the other statutory factors, and it has no automatic primacy. Paragraph [71] of Agbaje did not alter the test stated at paragraph [33].
4. The Recorder therefore erred in law by treating substantial connections with England as a precondition to permission. An appellate court must reconsider a discretionary decision founded on a misapprehension of law and may make a fresh order where the correct outcome is sufficiently clear.
5. Applying the correct test, there were solid grounds for the application. The parties had substantial connections with England, the English property was a matrimonial home and substantial property was available against which an order could be made. The New Zealand proceedings had taken account of liabilities connected with the property but not its value. The delay since divorce was significant but, in the circumstances, did not prevent permission. The grant of permission gave no indication of the likely result of the substantive claim.

• High Court (Family Division): appeal from the order of Recorder Sirikanda dated 27 May 2021. The refusal of permission was set aside and permission to apply under Part III of the Matrimonial and Family Proceedings Act 1984 was granted.