Application under Part III of the Matrimonial and Family Proceedings Act 1984 by a wife following a French divorce.
Facts
- After a marriage of over 20 years, the parties were granted a divorce by the French court.
- Initially the French court provided for child maintenance only but, after an appeal by the wife, granted capitalised spousal maintenance in the sum of €3,000,000. It also ordered the liquidation and division of the parties’ assets to be determined by a notary. As a result of the French court’s determination, community of property applied to the marriage and each party was entitled to an equal share of the marital assets (determined as of June 2007).
- The notary was unable to procure an amicable settlement. Thereafter, it was open to either party to apply for a judicially determined liquidation and division of the marital assets. Neither party did so.
- The wife was granted leave by the English court to make an application under Part III.
- She applied for the transfer to her of a property located in England and held by a BVI company (that was joined to the proceedings, but did not participate), she said, on trust for the husband. Alternatively she sought its sale and transfer of the sale proceeds to her.
- The husband sought to set aside the grant of leave.
- The principal issues before the court were:
- whether it had jurisdiction to make a financial order under Part III; and if so the scope of that jurisdiction;
- if there was jurisdiction, whether it was appropriate for an order to be made in England;
- if it was appropriate to make an order, what order should be made; for this purpose it was necessary to determine whether the husband was the beneficial owner of the property.
Held
- The English court had jurisdiction; there was no regulation, other instrument or principle of EU law which prevented the court from making an order under Part III [140].
- The EU regulations were not engaged either because they did not apply to the property consequences of marriage, or because this was not an application for maintenance [141] –[144].
- The French court had not been seised because neither party had made an application for the liquidation and division of the marital assets [149].
- It was appropriate for an English court to make an order because it involved the application of English trust principles, which the English court was better placed to determine than the French court. Additionally there was doubt as to whether the French court had jurisdiction over immovable property outside of the jurisdiction [157].
- Applying the principles set out in Prest v Petrodel, this was a particularly clear case of the husband using the BVI company to hold legal title on trust for himself [159] – [166].
- Moylan J made an order awarding the husband and wife a notional half share in the equity of the property. He would hear submissions as to the wife enforcing against the husband’s notional half share the costs orders obtained in this jurisdiction against the husband and the BVI company; and the unpaid capitalised maintenance [177].