IQ Legal TrainingBerkeley Lifford Hall Accountancy Services

Home > Judgments > 2019 archive

Vasilyeva v Shemyakin [2019] EWHC 932 (Fam) (16 April 2019)

This case involved an application for leave under s.13 Matrimonial and Family Proceedings Act 1984 to apply for the leave of the court to apply for financial relief in England and Wales. The test for the grant of leave is whether there is “substantial ground” for the making of an application.

The application was brought against the backdrop of complex, and at times concurrent, divorce and financial relief-related proceedings in both Russia and the UK. The judge struggled to grasp the complexities of the Russian law and proceedings from the information available, but did make some remarks. These were that the Russian courts did not apply a general rule of equal division, did not generally require full and frank disclosure but ruled on the assets it was asked to full upon, and generally divided assets not values [13].

The Russian proceedings eventually ended in what appeared to be an agreed order, although again it was difficult to follow. The extent of the order and what it relates to were issues raised by Mr Justice Williams. Both parties made submissions on the s.16 factors [30]-[31], [35]-[36].

The judge examined the law as to the meaning of 'substantial ground', relying on the judgment of Lord Collins in Agbaje v Agbaje [2010] 1 AC 628: "The threshold is not high, but is higher than "serious issue to be tried" or "good arguable case" found in other contexts. It is perhaps best expressed by saying that in this context "substantial" means "solid".

The judge raised concerns about the danger of embarking on the sort of detailed and deeper examination which is more appropriate for a full hearing. Although the application was not ex parte, the level of rigour and fullness of examination needed to be borne in mind at this stage. The judge was concerned about the level of detail he was being asked to go into, especially by father's counsel.

On the meaning of 'substantial', the judge concluded at [51]:

"Thus reminding myself that: substantial does not equate to showing a more than 50% prospect of an order ultimately being made but that there is something which can sensibly be said to amount to more than substantial issues of fact or law that require determination, more than good arguments, that the application raises substantial issues which as a matter of justice require determination, and that the application is not wholly unmeritorious or capable of being determined by knockout blow, I turn to my evaluation.

There is now a significant English element to it as a result of the habitual residence of the husband and the child in London."

The judge then concluded that leave should be granted. He looked at various points, including the fact that the husband had applied for asylum in the UK and that the marriage was based there over its final two years.

He also mentioned the lack of documentation provided by the husband regarding the extent of his assets. Whilst the husband's counsel had pointed out that it was for the wife to prove that her application should be granted, the fact that there was material which could allegedly have assisted was not produced even though the husband had mentioned at points that he could produce it, was relevant. This is important to bear in mind when preparing to respond to such applications.

The judge also noted that: "It is far from clear to me that that process led to an agreement and thus an order which was in full and final settlement of all the parties' claims." [54] In effect, there were arguments both ways.

The judge accepted that such an application cannot be a 'fishing expedition' or a way to cross-check disclosure made as part of the proceedings in the Russian court, "the picture which emerges from the current documentary evidence tends to support Mr Dyer's [the wife's counsel's] argument that it was more narrowly focused on the assets the husband put before the court and that the enquiry into assets both as to their value or existence was limited because of the framework within which the matter was heard." [56]

Whilst any needs-based case of the wife's may be weak, her claim was not purely needs-based.

The judge concluded that, where there is no direct evidence that a foregin court order only dealt with part of the assets, "the court must look at what indicators exist and extrapolate from them whether there is a real or viable argument that more extensive assets exist which would form the foundation of a further order. If there are such arguments they may translate into a substantial or solid ground." [59]

The judge then concluded that, whilst it may be arguable that none of the considerations analysed may provide a substantial ground, they do if taken together, and therefore leave would be granted.

Finally, the judge asked the parties whether she should make an order for security for costs. No submissions were made on behalf of the parties prior to the judge suggesting it, and therefore after brief submissions from the wife's counsel he deferred this issue to a further hearing where standard first directions appointment issues would be considered.

Summary by Rebecca Davies, Barrister, Field Court Chambers

You can read the full judgment of Vasilyeva v Shemyakin [2019] EWHC 932 (Fam) on BAILII