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The Matrimonial and Family Proceedings Act 1984: Has the Wind Changed?

Clare Renton, of 29 Bedford Row, examines the impact of recent cases on applications under the Matrimonial and Family Proceedings Act 1984

The Matrimonial and Family Proceedings Act 1984: Has the Wind Changed?

picture of clare renton

Clare Renton, 29 Bedford Row

During the 23 years since it was brought into force, the Matrimonial and Family Proceedings Act 1984 ("MFPA 1984") has been rarely invoked successfully. Two recent Court of Appeal cases, Moore v Moore [2007] EWCA Civ 361 (reported 20.4.07) and Akinnoye-Agbaje v Akinnoye-Agbaje [2007] EWCA Civ 681 ("Agbaje v Agbaje") suggest that this statute may provide a fruitful route to financial relief more frequently. If the Applicant is open to criticism for forum shopping, appeal of a foreign order through the back door, and undermining of principles of comity, it may not be fatal.

The Genesis of Part III of MFPA 1984
Part III was enacted in response to urging by the House of Lords in Quazi v Quazi [1980] AC 744 and the subsequent Law Commission Report No. 117. Paragraph 48 of the report was cited by Ewbank J in Z v Z (Financial Provision: Overseas Divorce) [1992] 2 FLR 291 at 299. The Statute provides that an application can be made even if an order has been made in another jurisdiction, but the mischief at which it is principally aimed is a very narrow category of cases where a party (usually a wife) has not only been deprived of financial relief, but where this has happened in such circumstances that without Part III an English court might feel driven to refuse to recognise the foreign decree.

Permissible Orders
The orders which the court can make are set out in MFPA 1984 Section 17. In substance these are:-

(a) An order which may be made under MCA 1973 section 23(1)
(b) An order which may be made under MCA 1973 section 24(1)
(c) And, if the marriage has been dissolved or annulled, a pension sharing order

MFPA 1984 section 21 incorporates various parts of MCA 1973 to orders under sections 14 or 17. Conspicuously absent are:

In theory MFPA 1984 usefully plugs a gap in pensions legislation in that it enables a pension sharing order to be made in respect of a sharable UK pension, when for example, there was no jurisdiction to compel the sharing of a UK pension when the divorce took place in the foreign jurisdiction.

The Recent Cases
MFPA 1984 was considered peripherally in D v D [2006] 2 FLR 825 by Bodey J. The central issue in that case was whether there had been a valid Greek divorce. Bodey J held that the Greek divorce was valid and that the English decree of divorce should not have been allowed to proceed to decree nisi stage. Following the separation, the couple had entered into an agreement with regard to the division of the assets and maintenance. The wife had not had full disclosure of the husband's assets. Having failed in her application to obtain a decree absolute in England the wife pursued her application for relief under the MFPA 1984. It was held that:

(i) The overwhelming connection of the parties was with Greece rather than England
(ii) It was highly likely that the wife would be held to the finality of the Greek agreement
(iii) The wife's decision to consent to the finality of the Greek agreement, notwithstanding that she believed that the husband had non-disclosed assets, was made with the benefit of full legal advice with her Greek lawyer

Munby J analysed the law in Agbaje v Agbaje [2007] EWCA Civ 681.

The Facts in Agbaje
It is the practice in Nigeria for a contested divorce suit to be heard together with any application for financial relief. On 2 June 2005 the Judge granted H a Decree Nisi of divorce. She also made financial orders, refusing to make transfer of property orders in respect of London houses in the name of the husband in one of which the wife had claimed to have lived for 8 years. W had sought capitalised maintenance in the sum of Naira 10m. She was awarded Naira 5m. It was also ordered (with H's consent) that H should settle on W for life a property in Nigeria.

Application for Leave
At the wife's application for leave to proceed under the MFPA 1984 Munby J's analysis of the way in which the claim to the English properties was rejected in Nigeria may well prove to be relevant in the main hearing. The Court of Appeal decided on 15 June 2007 that it was strongly arguable that the claim to the English properties in Nigeria was not dealt with by redistributive principles at all, whatever their precise nature, but rather by reference to principles of strict equitable ownership.

Munby J was referred to three Court of Appeal authorities under the MFPA 1984, and he also referred to a fourth, namely:-

Having referred to the relevant parts of the statute, to the leading authorities and to the submissions of both counsel, Munby J directed himself as follows at paragraph 59:-

"Is this in truth simply a case where a wife is seeking to have a second bite at the cherry following proceedings in a foreign country which, although not satisfactory from her point of view as comparable proceedings would be in this country, were nevertheless appropriately conducted and which led to a financial order in her favour which can be and has been implemented? Or is it, on the other hand, a case where the circumstances are sufficiently exceptional (using the word in the sense in which it was used by Russell LJ) that, notwithstanding the making of a significant order in her favour by the foreign court, it is nonetheless proper to enable her to pursue a second applicant in this country?"

What is Exceptional" for the MFPA 1984?
The reference in paragraph 59 to "Exceptional …in the sense…used by Russell LJ" is to the Judgment of Russell LJ in Holmes as follows:-

"Prima facie the order of the foreign court should prevail save in exceptional circumstances, and a good case for any interference with it or any supplementation of it should be apparent before any leave is granted under S13 where the foreign court is properly seized of the dispute, as it was in this case. So far as it is possible, duplicity of proceedings should be avoided in this as in all other fields in the interests of the parties and their children as well as in the interests of justice and the comity of nations."

The Husband's Argument in the Court of Appeal
In the application to the Court of Appeal for permission to appeal against the order of Munby J it was argued by the husband that Munby J merely had in mind that the award was much lower than W might be able to achieve in this country; and that it is doubtful if this by itself could ever make it appropriate for leave to be granted especially in circumstances where:-

It was further argued by the husband that unless some additional factor is involved, an application which is allowed to proceed under Part III of the 1984 Act purely on the grounds of disparity, will inevitably amount in practice, to an appeal against the foreign order. W chose not to appeal against the order in Nigeria. In the civil law jurisdictions in Europe the starting point for resolving financial affairs on divorce is the liquidation of the matrimonial property regime. When that has been achieved some countries (e.g. France) have discretionary powers to mitigate hardship, usually on a much less generous basis than in England.

Other Member States (e.g. Sweden) have very limited discretionary powers. If a Swedish couple have entered into a regime of separation of goods, the wife may emerge from a divorce with very limited resources. If leave is granted under Part III in a case to which Brussels II Revised applies; that arguably undermines the entire scheme of the Regulation and its underlying assumption that justice will be done equally well (albeit differently) in each Member State,although in countries which would apply English law in the dispute as in Moore this argument has less force. A similar position could arise if the parties had entered into a pre- or post-nuptial agreement in a common law jurisdiction which gives effect to such agreements – as almost all do. In many of the United States, for example, the spouses will be held to such an agreement provided that it has been entered into freely and with advice, regardless of the consequences. If a court in (say) Florida had held an American wife to an agreement which she had entered into in Florida, it is hard to imagine that an English court would subsequently give leave under Part III; regardless of her financial position. Another illustration comes from countries where a wife's entitlement to financial relief may be reduced or even eliminated because of her conduct. This was the position in de Dampierre v de Dampierre [1988] 2 AC 92

The only reason given by Munby J for giving W leave (other than the discrepancy between the Nigerian order and a possible English order) is that she would suffer "very serious hardship indeed" if leave was refused since she would be left homeless in England, where she claimed to have lived for 8 years. It was argued in the Court of Appeal that the Judge was in no position to reach so definite a conclusion without hearing oral evidence. Her case was put in Nigeria on the basis that she would be living there and coming to England twice a year for holidays. It must be assumed that that task was carried out properly: a fortiori since W did not appeal.

The Court of Appeal: Limited Leave
The Court of Appeal refused to set aside the grant of leave. It was held that the grant of leave was within the ambit of judicial discretion and it was noted that Munby J had deliberately limited the nature of the evidence which was to be called and in particular refused to countenance any further investigation into or valuation of, Nigerian properties. The judge indicated a relatively narrow band of investigation and had not given the wife carte blanche to re open the entire Nigerian proceedings in Nigeria.

The Facts: Moore v Moore
The parties were English but had moved to Spain. The husband obtained a divorce in Spain. The husband's application before the Court of Appeal was to set aside the wife's leave to apply for an order for financial relief pursuant to Part III of the 1984 Act.

The Husband's Argument in the Court of Appeal
The application was made on the basis that:

(a) the husband's application in Spain of 24 April 2006 and the wife's application in England of 11 July 2006 were both claims for maintenance within the meaning of Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I");
(b) the Spanish court had jurisdiction under Article 5.2 of Brussels I;
(c) the Spanish proceedings were first in time, and the English proceedings should be stayed under Article 27 (or Article 28) of Brussels I;
(d) the Spanish proceedings were still pending, notwithstanding the decision of 4 December 2006, because an appeal was pending; and (e) in any event, leave should not have been granted under section 13 of the 1984 Act.

The Court of Appeal dismissed the husband's appeal. Thorpe LJ stated,

"First, sections 13 and 16 have to be taken in conjunction: Jordan v Jordan [2000] 1 WLR 210, 218, per Thorpe LJ. So although the ultimate question for the judge is whether there is "substantial ground" for the application, in addressing that question the judge has to have to regard to "all the circumstances of the case," including, in particular, all the matters referred to in section 16(2), with a view to considering "whether England and Wales is appropriate venue.

Secondly, since the ultimate test is whether there is "substantial ground" for the application, it is not necessary for the applicant to establish either hardship or injustice in order to obtain leave: Jordan v Jordan [2000] 1 WLR 210, 221, per Thorpe LJ.

Thirdly, given the various factors referred to in section 16(2), and indeed the heading to section 16 itself, it is plain that the judge considering an application for leave has to have regard to questions of comity and forum (non) conveniens."

Importantly, while McFarlane J had decided that he should not give weight to the applicability of English law in Spain, the Court of Appeal disagreed, holding that it was an important factor. Since English law is applied by a number of EU civil jurisdictions, particularly when both parties have English nationality, it appears that this feature of Moore will be important in determining whether a MFPA 1984 claim should be allowed to proceed in future

Cases are now arriving from a greatly expanded EU. Where, for example, two Bulgarians live in England and own property here, a party may nevertheless, under the Council Regulation B2R, petition for divorce in Bulgaria as the place of joint nationality. The other party may have a poor outlook for obtaining what an English practitioner sees as a reasonable financial award under foreign local law. High Court costs and uncertainty of outcome remain in each application under the 1984 Act. Practitioners are keeping a careful eye on the ultimate award in favour of Mrs. Moores and Mrs. Agbaje. Meanwhile, never forget the importance of careful analysis of the foreign aspects. Liaise with the foreign lawyers, find out exactly what has happened in the State where the divorce took place and counsel caution.

Clare Renton
29 Bedford Row Chambers