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Home > Judgments > 2011 archive

BAJ v RRA [2011] EWHC 4070 (Fam)

Application for leave to apply for financial relief following foreign divorce – confirmation of test set out by the Court of Appeal in Traversa v Fredi despite Mostyn J remaining “unrepentant” about the stricter test he had earlier set out in CG v IF

The wife sought leave to apply for financial relief following a foreign divorce pursuant to s.13 Matrimonial and Family Proceedings Act 1984. The parties were married in Pakistan in October 2008. The husband was working for a Japanese bank in London at the time and was joined in London by the wife in December 2008.  The marriage broke down in November 2010. The husband went to Pakistan and pronounced talaq shortly thereafter. The wife subsequently presented a petition in the Brentford County Court but this was dismissed on proof of foreign divorce.

The former matrimonial home was a house in Wimbledon, purchased for £425,000 with the assistance of a mortgage of £240,000 and £130,000 from the husband's father (which the husband stated was an investment, but this was disputed by the wife). The wife mounted a claim to a share of the equity in the FMH and also in relation to certain chattels and jewellery.

Mostyn J stated that the test under s.13 is that the Court shall not grant leave unless there is a substantial ground for the making of an order, and recalled that in Agbaje v. Akinnoye-Agbaje [2010] Lord Collins explained that criterion by saying that it must be a solid claim.

In his earlier decision of CG v IF  (in which he had endeavoured "to insert some intellectual discipline to the exercise" [para 6]) Mostyn J had held that unless the court is satisfied on a probability scale of 50% or more that there would be a substantive award leave should not be granted. He noted that this approach had been overturned "roundly" by the Court of Appeal in Traversa v Freddi [2011] and a greater than 50% likelihood of success was not necessary.

Although Mostyn J remained "unreprentant" [para 8] about his views expressed in CG v IF, he was bound by the decision of the Court of Appeal, "however illogical I think it may be" [para 8]. Had he been applying his previous test he would not have granted leave, but applying the Court of Appeal's test which was simply "to weed out the truly hopeless cases" [para 9] he considered leave should be granted.

Mostyn J concluded by encouraging the parties to settle as the wife's claims were "if not speculative, are certainly modest in their scale of claim" [para 10].

Summary by Thomas Dudley,  barrister, 1 Garden Court Family Law Chambers

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IN THE HIGH COURT OF JUSTICE No. FD11F00849
FAMILY DIVISION

[2011] EWHC 4070 (Fam)
Royal Courts of Justice
Tuesday, 13th December 2011

Before:

MR. JUSTICE MOSTYN
(In Private)

B E T W E E N :

BAJ Applicant

-  and  -

RRA Respondent
__________

Transcribed by BEVERLEY F. NUNNERY & CO
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__________

THE APPLICANT appeared In Person.
MISS P. RAI  (instructed by Crescent Law)  appeared on behalf of the Respondent.
__________

J U D G M E N T
(Approved)(Anonymised)
This judgment was handed down in private on 13 December 2011 and consists of 10 paragraphs.  The judge gives leave for it to be reported in this anonymised form as BAJ v RRA. 

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by his or her true name or actual location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

MR. JUSTICE MOSTYN:
1. This is an application for leave to apply for financial relief following a foreign divorce pursuant to s.13 Matrimonial and Family Proceedings Act 1984.  The application was made on 12th October 2011. 

2. The background is as follows.  The parties are both of Pakistani ethnicity and were married in Pakistan on 6th October 2008.  At that time the husband (as I will call him even though the marriage has been dissolved in Pakistan) was working for a Japanese bank in London and he was joined here by the wife in December 2008.  Their matrimonial home a house in Wimbledon which was purchased for £425,000 with the assistance of a mortgage of £240,000 and, says the husband, a contribution from his father of £130,000 in respect of which he produces a letter dated 5th December 2009 which makes it clear the money was not a gift but was an equity investment into the property.  The wife disputes the authenticity of that document.  The wife says the property is now worth £465,000.  If the claim of the husband's father is valid, then the equity will not exceed £95,000; it will be pro tanto less if the property is worth less than £465,000.

3. The marriage broke down in November 2010 and there were proceedings in the Brentford County Court under the Family Law Act.  The husband went to Pakistan and pronounced talaq, I believe, under the Muslim Family Ordinance 1961.  The conciliation procedure presided over by the Chairman of the Union Council took effect but no reconciliation was arrived at and the divorce was finalised on 31st March 2011, according to the wife in her affidavit, although according to the husband the divorce was effective on 28th December 2010.  I think that the difference between the parties is that the divorce is effective after the conciliation procedure has been gone through, from the date that talaq is pronounced, but it is in effect suspended while the conciliation procedure takes place. 

4. The wife had presented a petition to Brentford County Court but that was dismissed on proof of the foreign divorce.  She wishes to mount a claim to a share of the equity in the matrimonial home, and she says in para.12 of her affidavit there may be a claim in relation to chattels and jewellery in addition. 

5. Under s.13 I shall not grant leave unless I consider that there is a substantial ground for the making of an application for such an order, and in the Supreme Court decision of Agbaje v. Akinnoye-Agbaje [2010] 1 AC 628 Lord Collins explained that criterion by saying that it must be a solid claim, which I am not sure adds a great deal to the concept of being "substantial" as referred to in the statute. 

6. In my own decision of CG v. IF [2010] 2 FLR 1790, in an endeavour to try to insert some intellectual discipline to the exercise, I suggested that a substantial ground would not be demonstrated unless the court could confidently say that it was more likely than not that a substantive award would be made in favour of the claimant were leave to be granted.  I expressed it thus: unless the court is satisfied on a probability scale of 50% or more that there would be a substantive award leave should not be granted.  The reasoning that led me to that conclusion was that it would be, I suggested, manifestly an abuse of language to suggest that there was either a substantial ground for making the claim or that the claim was solid, if it could be said that it was unlikely that it would succeed; or, put another way, if it was more probable than not that the claim would be dismissed.  That seemed to me to be the only logical definition that could be applied to the concept of "substantial ground", as referred to in s.13.

7. However, that reasoning of mine was roundly overturned by the Court of Appeal in Traversa v. Freddi [2011] 2 FLR 272, being described by Munby LJ not only as wrong but doubly wrong, and it was stated quite unambiguously by him in para.53 that:

"It was not for him to add some gloss; and the gloss he added was not merely wrong but quite inconsistent with Lord Collins' authoritative guidance in at least two respects. In the first place, a 'substantial' or 'solid' case, contrasted with a case which is 'wholly unmeritorious', is not a case requiring a 50% chance of success, and with all respect to Mostyn J's view Lord Collins said nothing to suggest it is."

8. Whilst what I have said so far demonstrates that I am pretty unrepentant in my view, I am of course bound by what has fallen from the Court of Appeal, and I have to apply it, however illogical I think it may be.  I would say that were I applying my own test as propounded by me in CG v. IF I would not have concluded that there was a probability of 50% or more that the wife here would receive a substantive order.  But that is not the test now.

9. So applying the very considerably diluted test, which is, so far as I can judge, to weed out the truly hopeless cases, I conclude that this is a case, applying the principles which are binding on me, where leave should be granted.

10. I am going to direct that pursuant to the Family Procedure Rules 2010 rule 8.28 that this application shall be heard by a district judge at the Principal Registry.  Having granted permission, when the application is actually made it will be an application for a financial remedy under rule 2.3(c) and Part 9 will apply to it.  That will require Forms E from both parties and an FDR which is a judge-guided mediation session where I hope the parties will think long and hard about whether they should settle this case in circumstances where the wife's claims, if not speculative, are certainly modest in their scale of claim.