Facts
- H and W been married for many years, and lived together in England.
- Shortly after the parties’ separation in April 2017, H moved to Jersey with his new partner. Within 6 weeks of his arrival in Jersey, H petitioned for divorce there.
- W’s belief was that H had chosen to file for divorce in Jersey rather than England because Jersey law had no provision for pension sharing orders.
- Both H and W were advised by Jersey lawyers, and the parties reached an agreement embodied in a consent order made by the Jersey court in March 2019. It provided for a clean break, with the FMH to be sold and the proceeds divided 55% to W and 45% to H.
- Very shortly after the making of the consent order, in April 2019, W made an application in England under Part III of the Matrimonial Family Proceedings Act 1984. Her application was without notice to H.
- On 21 May 2019, Mr Justice Cobb gave W permission to apply for a pension sharing order. No reference had been made at the hearing (which H did not attend) to s12(1)(a) of the MFPA 1984, which states that relief under the Act is only available to those who have divorced ‘in an overseas country’, or to s27(7)(3), which states that an ‘overseas country’ means a country or territory outside the British Islands, and the term ‘British Islands’ is a term which has, since 1889, included the bailiwick of Jersey.
- H made a (late) application to set aside W’s permission.
Issues
- Should H be granted permission to set aside the permission granted by Cobb J to W’s application under Part III, on the basis that there was no jurisdiction?
- What was the impact, if any, of H’s late application to set aside?
- Was there any way in which the court could interpret the MFPA 1984 so that Jersey could count as an overseas country for the purpose of the Act?
Held
- Mr Justice Cohen extended H’s time for applying to set aside the order of Cobb J, and granted H’s application. W’s application under Part III was struck out.
- Cohen J was not persuaded by submissions made on behalf of W that there would be a ‘serious injustice’ to W if she were not able to access relief under Part III because H’s pension income was some 2.5 times that of W’s. The absence of powers to pension share can be dealt with in other ways by, for example, offsetting – although it was unclear whether this had been a factor in the parties’ agreement of the unequal division of the proceeds of sale from the FMH.
- It had been advanced on behalf of W that the court should interpret the relevant sections of the MFPA 1984 by following the three principles of interpretation: the ‘literal rule’, the ‘mischief rule’, and the ‘golden rule.’ The ‘mischief rule’ was defined as the principle of considering what was the mischief and defect for which the common law did not provide, and to interpret statute in a way that would suppress this mischief. The ‘golden rule’ was defined as the principle of interpreting statute in a way that would prevent inconsistency and absurdity in the application of the literal rule.
- Cohen J was clear that the ‘literal rule’ required him to set aside W’s application, as the definition of ‘overseas country’ was clear. He also rejected the ‘mischief rule’ interpretation, stating that he was being asked ‘not simply to construe the statute, but to ride roughshod over it.’ Finally, Cohen J rejected the ‘golden rule’ interpretation on the grounds that he did not accept that there was inconsistency or absurdity in applying the statute as worded. There was nothing ambiguous in the statute; the wording of the 1984 Act was deliberate; and it was for Parliament and Parliament alone to change it if it thought appropriate.
- Finally, Cohen J made a costs order against W in the sum of £11,000. It was clear that costs must follow the event, and he held that W had known from the outset of the proceedings, or ought to have known, that her case was on weak ground. H should not be forced to bear costs because of W’s determination to run this point.
