Natalia Nikolaevna Potanina v Vladimir Olegovich Potanin (No.2)

For leave under Part III of the Matrimonial and Family Proceedings Act 1984, “substantial ground” means a solid basis for a claim. The inquiry is analogous to whether the claim has a real prospect of success. It requires more than a non-abusive claim, but not a good arguable case.

The court must assess the section 16 factors at the leave hearing, with a forward view to material which may emerge at a substantive hearing. A substantial English connection is not a statutory requirement. Hardship and injustice are not preconditions, but may make an order appropriate. Where the Maintenance Regulation confers jurisdiction over a needs claim, section 16(3) prevents its dismissal on forum-based grounds which would defeat the maintenance creditor’s choice of jurisdiction.

The wife, a Russian national, sought leave to claim financial relief following a Russian divorce under Part III of the Matrimonial and Family Proceedings Act 1984. Cohen J initially granted leave without notice, but later set it aside and dismissed her renewed application: [2019] EWHC 2956 (Fam).

The Court of Appeal first restored the original grant of leave but did not decide whether renewed leave should have been granted: [2021] EWCA Civ 702. The Supreme Court allowed the husband’s appeal on the set-aside issue and remitted the unresolved appeal concerning refusal of leave: [2024] UKSC 3.

The residual appeal concerned the correct section 13 threshold, the relevance of the wife’s English connection and alleged inadequate Russian provision, and the effect of the Maintenance Regulation on her needs-based claim.

1. Appeal allowed unanimously. Cobb LJ, with whom Falk and Moylan LJJ agreed, set aside the dismissal of the wife’s application, granted her leave under Part III, and remitted the claim to the Family Division for allocation and case management.

2. The section 13 requirement of substantial ground means a solid basis for making the application. Following the Supreme Court’s clarification, the inquiry is akin to whether the prospective claim has a real prospect of success. The court proceeds on the applicant’s factual case unless it is clearly without substance. It must also consider the real prospect that disclosure or other material will support the claim at a full hearing.

3. The judge had wrongly treated the wife’s connection with England and Wales as insufficient. Section 16 contains no requirement of a substantial connection. Connection and the other section 16 factors are assessed at the leave hearing, not solely at the date of application, and with a forward view to the prospective substantive hearing. The wife’s habitual residence, investor visa, property ownership, and evidence that her Russian ties had largely been severed gave her a real and meaningful English connection.

4. The judge had also erred by making adverse findings about the wife’s motives and alleged misleading conduct at a summary hearing without tested oral or expert evidence. He had failed properly to address the alleged lacuna in Russian law, the very substantial disparity between the assets retained by the husband and the award received by the wife, and the possible hardship, injustice, and unmet reasonable needs. Those matters were relevant under section 16, although hardship and injustice were not preconditions.

5. For the needs-based part of the claim, the wife was a maintenance creditor and satisfied Article 3(b) of the Maintenance Regulation through habitual residence. Section 16(3) precluded dismissal on an appropriateness or forum-based assessment that would frustrate her right to choose the jurisdiction. The statutory threshold in section 13 nevertheless remained to be met. On the evidence available in 2019, it was met for some financial relief, even if not necessarily a full award.

• Court of Appeal (Civil Division): Allowed the remitted appeal, set aside the refusal of leave, granted leave under Part III, and remitted the claim for case management: [2025] EWCA Civ 1136.
• Supreme Court: Allowed the husband’s appeal on the procedure for setting aside leave and remitted the unresolved appeal against refusal of renewed leave: [2024] UKSC 3.
• Court of Appeal (Civil Division): Allowed the wife’s first appeal against setting aside the without-notice grant of leave, but did not determine the refusal of renewed leave: [2021] EWCA Civ 702.
• High Court (Family Division): Set aside the earlier grant of leave and dismissed the wife’s renewed application for leave: [2019] EWHC 2956 (Fam).