Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE MOSTYN
Between :
CG | Applicant |
- and - | |
IF | Respondent |
Miss N Gray (instructed by International Family Law Group) for the Applicant
Mr C Wood (instructed by William Sturges Solicitors) for the Respondent
Hearing dates: 10 May 2010
Judgment
Mr Justice Mostyn :
In this judgment I shall refer to the Applicant, CG, as "H" and to the Respondent, IF, as "W".
This is H's application pursuant to s13 Matrimonial & Family Proceedings Act 1984 for leave to make an application for financial relief following a Swiss divorce.
s12(1) of the 1984 Act provides:
Applications for financial relief after overseas divorce etc—
Where—
a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and
the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales,
either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act.
s13(1) provides:
Leave of the court required for applications for financial relief—
No application for an order for financial relief shall be made under this Part of this Act unless the leave of the court has been obtained in accordance with rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order.
FPR 3.17(1) provides:
An application for leave to apply for an order for financial relief under Part III of the Act of 1984 shall be made ex parte by originating summons issued in Form M25 out of the Principal Registry and shall be supported by an affidavit by the applicant stating the facts relied on in support of the application with particular reference to the matters set out in section 16(2) of that Act.
In order to grant leave the court must be satisfied that the Applicant has established its jurisdiction. Jurisdiction is governed by s15. This provides:
Jurisdiction of the court—
Subject to subsection (2) below, the court shall have jurisdiction to entertain an application for an order for financial relief if any of the following jurisdictional requirements are satisfied, that is to say—
either of the parties to the marriage was domiciled in England and Wales on the date of the application for leave under section 13 above or was so domiciled on the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or
either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or was so resident throughout the period of one year ending with the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or
either or both of the parties to the marriage had at the date of the application for leave a beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.
Where the jurisdiction of the court to entertain proceedings under this Part of this Act would fall to be determined by reference to the jurisdictional requirements imposed by virtue of Part I of the Civil Jurisdiction and Judgments Act 1982 (implementation of certain European conventions) or by virtue of Council Regulation (EC) No 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters or then—
satisfaction of the requirements of subsection (1) above shall not obviate the need to satisfy the requirements imposed by virtue of that Regulation or Part I of that Act; and
satisfaction of the requirements imposed by virtue of that Regulation or Part I of that Act shall obviate the need to satisfy the requirements of subsection (1) above;
and the court shall entertain or not entertain the proceedings accordingly.
Were leave to be granted and the court to proceed to a final hearing then the court has a duty on that occasion pursuant to s16 to consider whether England and Wales is the appropriate venue for the application. Under s16 the court has a duty to consider a number of specific factors that bear on the connection of the parties, their marriage and their divorce with both England and Wales and the country where they were divorced. It is well established that, although not explicitly swept up by s13, the s16 factors are to be taken into account on the leave application.
At the final hearing, by virtue of s18, the familiar s25 Matrimonial Causes Act 1973 factors are to be taken into account. Again, although not explicitly swept up by s13, the manner in which the court might exercise its discretion at the final hearing is plainly a matter to be taken into account when considering the question of leave.
The fate of H's application therefore turns on my being satisfied by him that:
The jurisdiction of the court has been established, at least prima facie; and
there is a "substantial ground" for the making of the application.
I shall turn to the question of jurisdiction later. There is a considerable complication in this regard.
In the recent Supreme Court decision of Agbaje v Akinnoye- Agbaje [2010] UKSC 13, Lord Collins, delivering the judgment of the Court stated:
It is clear that something must be done to prevent the waste of costs and court time, and prejudice to the applicant, caused by applications to set aside which have only questionable chances of success. That must of course be balanced by a proper application of the threshold of "substantial ground." But as Deane J said in the Federal Court of Australia in an entirely different context, "the word 'substantial' is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision": Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331, 348.
In the present context the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. 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." Once a judge has given reasons for deciding at the ex parte stage that the threshold has been crossed, the approach to setting aside leave should be the same as the approach to setting aside permission to appeal in the Civil Procedure Rules, where (by contrast with the Family Proceedings Rules) there is an express power to set aside, but which may only be exercised where there is a compelling reason to do so: CPR r 52.9(2). In practice in the Court of Appeal the power is only exercised where some decisive authority has been overlooked so that the appeal is bound to fail, or where the court has been misled: Barings Bank plc v Coopers & Lybrand [2002] EWCA Civ 1155; Nathan v Smilovitch [2007] EWCA Civ 759. In an application under section 13, unless it is clear that the respondent can deliver a knock-out blow, the court should use its case management powers to adjourn an application to set aside to be heard with the substantive application.
The differences between the various tests referred to by Lord Collins are very subtle and highly nuanced. We now all know that a substantial/solid ground is a stiffer test than a "serious issue to be tried" or a "good arguable case", albeit, as Lord Collins points out, the word "substantial" is calculated to give rise to ambiguity. In my opinion a solid/substantial ground will be shown where the court can confidently say that the probability is greater than or equal to 50% that the applicant will achieve a substantive order were the matter to be tried.
I should say a few words about procedure. Here W has filed a statement, submitted a skeleton, and instructed counsel. The reason she was able to do all this was because she was served with the originating process, even though there was no requirement to do so. There was some faint protest raised at the presence of her legal team and I was asked not to read the skeleton submitted on her behalf. I think that there is a helpful analogy to be drawn with the appellate process, an analogy that is given legitimacy by para 33 of Agbaje. Although an application for permission to appeal is strictly ex parte it is a commonplace for the other party to file a skeleton in opposition, and such a skeleton is invariably read (in my experience). Moreover, the Court of Appeal has full power to adjourn the application for permission to be heard inter partes either with or without the appeal proper to follow if granted.
In Agbaje at para 30 Lord Collins pointed out that the Law Commission in its report intended that a leave application should be capable of receiving similar treatment. He stated:
As indicated above, the filter mechanism for leave in section 13 was recommended by the Law Commission. The Working Paper suggested that the ground for leave be that in all the circumstances the case was a proper one to be heard, but it added (para 53, n 195) that the court would have an inherent power to deal with individual cases in the most convenient way, e.g. by adjourning an application for leave to enable evidence to be filed by the other side; and by dealing with applications for leave inter partes and (if leave is given) with the substantive matters at the same hearing. The Law Commission Report recommended that the filter should require the applicant to establish "a substantial ground" for the making of the application, and if necessary Rules of Court could specify the circumstances in which the respondent could object: para 2.3.
In this case I decided that I should read Mr Wood's skeleton argument and hear his submissions.
In Agbaje the Supreme Court was extremely critical of the huge costs and delay that had been incurred by an unsuccessful application to set aside the ex parte grant of leave. I would have thought that in order to avoid any kind of repetition of that syndrome the court should be prepared, where on a true ex parte application the needle appears to be flickering around the 50/50 probability mark, to adjourn it to be heard inter partes.
The facts
H and W married in 1979 and have a daughter, E, now aged 30. In 1999 they sold their home in Glasgow and purchased a flat in London E14, in that same year they moved to Austria, and in 2003 they moved to Switzerland. Each of them is permanently resident in Switzerland.
In his affidavit dated 29 September 2009 H states that from 2003 W began to pressurise him to transfer the London flat to her "in order to prevent the flat from being vulnerable to creditors that she imagined might emerge". He stated in para 12 that following the discovery by W of an adulterous relationship on his part in 2006 her demands became more urgent. He stated that in order "to calm the situation down" he "finally acceded to signing the papers that she had had drawn up by a solicitor". He went on:
"This was on the strict understanding that for the time being, the flat would remain our daughters home and that I was not conceding my share in the property to my ex-wife. I felt there was no detriment to me, but that was giving my ex-wife peace of mind that was valuable to her. I continued to contribute to the mortgage and other bills as I had always done from the joint account."
In the bundle there is a statement made by W that will be placed before a HM Land Registry Adjudicator in connection with H's attempts to obtain a restriction on the property. W tells a different story. The parties do agree that the discussions about the transfer of the flat arose in the context of the discovery of H's adultery. It seems that W was taking full advantage of H's guilt and shame. She stated:
"We talked about the property. I asked [H] to sign the property over to E but he insisted on transferring the ownership to me rather than to E. I agreed to tell neither H's mistress or his father (who was quite ill and held [H] in high esteem) about how [H] had behaved."
W says that the transfer was done in full knowledge that there was going to be a divorce and that there was no agreement of any kind that she would hold the property or any part of it on trust for H or that he would retain any interest in it.
Exhibited to the statement is a copy of a letter to both H and W from a firm of solicitors instructed to undertake the transfer. It is dated 7 August 2006. It reads, in part:
"Your proposed Transfer of Equity of [address of property]
This letter explains the basis on which our firm will carry out all the work necessary in respect of your proposed Transfer of Equity from [H] and [W] to [W]"
On 20 October 2006 the solicitors wrote to H alone as follows:
"Transfer of Equity in relation to [address of property]
Further to previous correspondence in this matter we enclose herewith the following documentation:-
Deed of consent and charge …….
We are at liberty to advise you that you may wish to take separate independent legal advice before signing this document
Engrossment of the transfer……"
On a date between 20 and 26 October 2006 H signed the Deed of Transfer in Form TR1. The document itself was not dated until 11 December 2006. In Box 5 it specifies H and W as transferors. In Box 6 W is identified as sole transferee. In Box 11 none of the boxes signifying a trust arrangement is ticked. In Box 12 H is released from his mortgage covenants.
These documents demonstrate that H will have a very hard task indeed to show that he was mistaken as to what he was signing. It is just not credible that he could have been unaware or mistaken as to what he was signing away.
About three weeks later H and W jointly submitted a request for a divorce and a comprehensive financial settlement to the Kreisgericht Untertoggenburg-Gossau in the Canton of St Gallen. The request was in these terms:
The husband and wife jointly request that the District Court Untertoggenburg dissolve their marriage concluded in Southend-on-Sea (England) on 15th December 1979 based on Art. 111 of the Civil Code.
Since we both have earned income of our own and each spouse can support himself/herself, we are mutually dispensing with the payment of maintenance contributions.
With regard to property rights the husband and wife declare and agree the following:
Each party is to retain the bank accounts and bank deposits currently in his or her name.
Likewise each spouse is to retain the other assets in his or her name and the items in his or her possession.
The husband and wife expressly declare to the District Court Untertoggenburg-Gossau that with regard to their property rights their mutual claims are settled.
Since both spouses have a pension fund of their own, they mutually waive any pension rights adjustment.
The husband and wife shall each bear half of the court fees. Each spouse shall pay for any legal advice himself/herself.
On 18 January 2007 the request came before Dr Pfister, the President of the Court, who approved it and ordered a two month period of reflection. His file note is as follows:
"The parties have requested a joint hearing from the outset. I would first confirm the personal particulars. The forename and the maiden name of the wife's mother is: SK. The forename and the maiden name of the husband's mother was: HJ. The husband was born at the place of the marriage, i.e. in Southend-on-Sea in the county of Essex in England. The solicitor Michael Hüppi has assisted the spouses in drawing up the divorce settlement. The spouses are at present still living together, but see each other rarely, as the husband is a cameraman and is generally away during the week. As from August 2007, he expects to obtain permanent employment, from which he will earn between SFr. 60,000 and SFr. 70,000 per annum. Both spouses have a pension within the meaning of the AHV [Old Age Pensions Regulation], the wife in Germany and in Switzerland, the husband in England. The husband also has a company pension in England and the wife has a small company pension in Switzerland. As the various systems are scarcely compatible, both spouses have waived the right to a pension rights adjustment. I discussed the settlement with the spouses and there were no amendments. The wife is happy for her maiden name Z not to be mentioned if possible, including in the final decree. She apparently has bad memories in that regard, as when I asked her about it, she broke down in tears. Having discussed the matter in full, I imposed a 2-month period for reflection for the spouses and provided them with the prepared declaration of confirmation."
On 28 March 2007 the agreement was made a final order by Dr Pfister. From the terms of the ruling it can be seen that Dr Pfister had before him a copy of the parties' joint 2005 tax return. This records the parties' assets in Switzerland and abroad. In line 31 alongside the legend Liegenschaften (real property) is recorded the value of CHF400,000. This is a reference to the London flat. That figure is carried to line 33 as part of a total figure of CHF430,001 which bears the legend Total der Vermögenswerte" (total assets). The word Vermögenswerte appears in clause 3.2 of the agreement. Yet H says that he was not aware that clause 3.2 embraced real property. He says "I was not aware at the time that the Swiss Order encompassed our English property".
Miss Gray makes the point that the agreement, approved as an Order, only seems to address property to which the parties were solely titled. It does not address their joint bank account or a joint policy. Moreover, the tax return to which the judge referred stated, correctly as at 2005, that the flat was jointly owned. The judge must be taken to have been intending to approve the continued joint ownership of the flat. Thus it is submitted that if the order in fact confirms the sole ownership of the flat by W then it is flawed by a mistake.
If that is so then one would expect that there would be remedies available to H to rectify what he says is a mistaken order. H has taken advice in Switzerland and that is to the effect that his chances of successfully rectifying the order are remote indeed because of his failure to draw the alleged agreement of continued co-ownership to the attention of the court and on account of delay in mounting the claim. So it is that H comes to this court – to remedy supposed deficiencies in the Swiss law of rectification.
The Brussels and Lugano Conventions and the Brussels I Regulation
In Agbaje Lord Collins pointed to what he termed an area involving "difficult questions" where the foreign order comes from a jurisdiction bound by the Brussels/Lugano Conventions or the Brussels I Regulation. He stated:
But, although the point does not arise on this appeal, a warning note must be struck about the position with regard to States to which Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("the Brussels I Regulation") applies. The effect of sections 15(2) and 28(4) of the 1984 Act is that the jurisdictional provisions of Part III and Part IV respectively are subject to the Brussels I Regulation (and the Lugano Convention). Those sections do not address the question whether a judgment in a Brussels I Regulation State making financial provision on divorce (or refusing to make such provision) would be entitled to recognition so as to prevent an award under Part III or Part IV.
For the purposes of the Brussels I Regulation and the Lugano Convention there is a distinction between "maintenance" which is within the scope of the Regulation (Article 5(2), which confers jurisdiction on the courts of the maintenance creditor's domicile, in addition to that of the debtor's domicile under Article 2); and "rights in property arising out of a matrimonial relationship" ("régimes matrimoniaux") which are expressly excluded from the scope of the Regulation. These are autonomous concepts: Case 143/78 de Cavel v de Cavel (No 1) [1979] ECR 1055; Case 120/79 de Cavel v de Cavel (No 2) [1980] ECR 731. The Brussels II Revised Regulation (Council Regulation (EC) 2201/2003 on jurisdiction and the recognition of judgments in matrimonial matters and matters of parental responsibility) does not apply to the "property consequences of the marriage or any other ancillary measures" (Recital (8)), or to "maintenance obligations" (Recital (11)).
It is only necessary to mention that if an award of maintenance had been made in another Member State, the question might arise as to whether the application in England under Part III would be precluded on the basis that the issue of maintenance had been determined in the other jurisdiction and that that determination was entitled to recognition. That would depend, at least in part, on whether the application was to be characterised as relating to maintenance or to rights in property arising out of a matrimonial relationship. Case C-220/95 Van den Boogaard v Laumen [1997] ECR I-1147, [1997] QB 759 shows that a transfer of property may be in the nature of maintenance if it is intended to ensure the support of a spouse; but a transfer of property which serves only the purpose of a division of property is not in the nature of maintenance, and concerns rights in property arising out of a matrimonial relationship. See also Schlosser Report on the Accession Convention to the Brussels Convention ([1979] OJ C59), para 50; Moore v Moore [2007] 2 FLR 339 (CA). This is an area which involves difficult questions which do not arise for decision on this appeal.
Unfortunately for these parties those very difficult questions do arise directly on this application.
Switzerland is of course a Lugano Convention country. The Lugano Convention of 1988 became part of English law by means of the Civil Jurisdiction and Judgments Act 1982. It is virtually identical to the Brussels Convention of 1968 (part of English law by means of the Civil Jurisdiction and Judgments Act 1982). The Brussels I Regulation No 44 of 2001 is in turn modelled on the earlier Conventions.
The framers of the 1984 Act were well aware of the existence of the Brussels Convention in English law. It is referred to in the Law Commission Report. Under Article 1 of all three instruments it is expressly stated that the Convention/Regulation does not apply to rights in property arising out of a matrimonial relationship. But they all apply to maintenance and will continue to do so until next year when the Maintenance Regulation comes into effect. In fact there are special rules about maintenance in Art 5(2) of each instrument.
In this case there is a Swiss (consent) judgment waiving maintenance claims. As such it is entitled to near automatic recognition under Title III of the Lugano Convention. The grounds for non-recognition specified in Arts 27 and 28 would not apply on the facts of this case. And Art 29 states that "under no circumstances may a foreign judgment be reviewed as to its substance".
Thus it seems to me that were H's application under s13 to amount to a claim for "maintenance" then it would be impossible to pursue as it would be in irreconcilable conflict with the Swiss judgment dismissing that claim which has as much force as a domestic judgment to equivalent effect. This is accepted by Miss Gray, who is emphatic that H's claim is not for maintenance.
Indeed if H's claim is governed by the Lugano Convention then by s15(2) of the 1984 Act the jurisdictional requirements are modified to bring them into line with that applicable to that Convention. That would require either H or W to be actually resident in England and Wales (see s41 CJJA 1982). As neither is, then H's claim could not be entertained. Absent the Lugano factor jurisdiction is claimed on the ground that H is domiciled here in the common law sense. That is certainly arguable, and I have no difficulty in finding that jurisdiction under s15(1) has been prima facie established. So it can be seen that the Lugano factor looms large in the key matter of the jurisdictional threshold.
So the central question is: does H's claim have a maintenance element? If it does then it is clear to me then it cannot proceed for the reasons I have identified.
In Agbaje at para 57 (cited above) Lord Collins observed that in Van den Boogard v Laumen the ECJ supplied a liberal interpretation to the concept of maintenance. It was as follows:
Owing precisely to the fact that on divorce an English court may, by the same decision, regulate both the matrimonial relationships of the parties and matters of maintenance, the court from which leave to enforce is sought must distinguish between those aspects of the decision which relate to rights in property arising out of a matrimonial relationship and those which relate to maintenance, having regard in each particular case to the specific aim of the decision rendered.
It should be possible to deduce that aim from the reasoning of the decision in question. If this shows that a provision awarded is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, the decision will be concerned with maintenance. On the other hand, where the provision awarded is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under the Brussels Convention. A decision which does both these things may, in accordance with Art 42 of the Brussels Convention, be enforced in part if it clearly shows the aims to which the different parts of the judicial provision correspond.
It makes no difference in this regard that payment of maintenance is provided for in the form of a lump sum. This form of payment may also be in the nature of maintenance where the capital sum set is designed to ensure a predetermined level of income.
In the present case, as the Advocate General points out in para 59 of his Opinion, the court of origin was under an obligation to consider whether it had to impose a clean break between the spouses and to order payment of a lump sum instead of periodical payments. It is clear that the choice of method of payment made by the court of origin cannot alter the nature of the aim pursued by the decision.
Likewise, the fact that the decision of which enforcement is sought also orders ownership in certain property to be transferred between the former spouses cannot call in question the nature of that decision as an order for the provision of maintenance. The aim is still to make provision, by means of a capital sum, for the maintenance of one of the former spouses.
I draw attention to the word "solely" in para 22 of the judgment, which I have emphasised. It seems to me that if an ancillary relief award contains as an ingredient (to any material degree) the satisfaction of needs, then it will be not be "solely" concerned with the division of property between spouses. This will be the case whether the needs are for accommodation or income; and whether they are satisfied by way of Duxbury lump sum or periodical payments; or by the supply of one or more homes; or by pension sharing.
In Moore v Moore (cited by Lord Collins) at para 80 the Court of Appeal stated:
[80] The ruling by the European Court was that a lump sum payment was to be regarded as maintenance if its purpose was to ensure the former spouse's maintenance. Although its formulation differs slightly from that of Jacobs AG (who spoke of the 'essential object' of the order for payment), the European Court expressly approved much of Jacobs AG's opinion. The following propositions may be derived from this decision: first, whether a claim is for maintenance depends upon an autonomous interpretation of the term, and the label given to the claim by national law is not decisive; secondly, payment of a lump sum or transfer of property may be in the nature of maintenance if it is intended to ensure the support of a spouse; thirdly, payment of a lump sum or transfer of property which serves only the purpose of a division of property or compensation for non-material damage is not in the nature of maintenance; fourthly, a payment or transfer of property intended as a division of assets will concern 'rights in property arising out of a matrimonial relationship'; fifthly, whether a claim relates to maintenance will depend on its purpose, and in particular whether it is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, or where the capital sum set is designed to ensure a predetermined level of income; sixthly, where the provision is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under Brussels I.
Both the ECJ and the Court of Appeal have assumed that it is in fact possible to have an ancillary relief award that does not contain an ingredient of the meeting of need. Far be it for me to challenge such a view. But I do wonder if this is in fact possible under English law. After all, under s25(2)(b) of the 1973 Act the Court is obliged to take into account in every case the needs obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future.
Under the new ideology promulgated by the House of Lords in Miller [2006] 2 AC 618 we know that the "principles" or "rationales" that justify a redistribution of property are needs, compensation and sharing. The most common rationale is stated to be needs (see para 138 per Baroness Hale). But these principles or rationales have been stated time and again not to amount to formal independent heads of claim, allowing someone to come along to court saying (say) "I am only applying under the principle of sharing".
Thus in McFarlane No 2 [2009] 2 FLR 1322 Charles J stated:
These are expressions of the rationale to be applied to achieve the objective of a fair result. Fairness is the overarching objective or principle and the principles of need, compensation and sharing identify bases of reasoning to be applied to achieve it.
It follows that they should not be given a free standing life, interpretation or application as if they were themselves part of the statute rather than descriptions of the approach to the reasoning to be used in applying the statute to achieve a fair result (see for example C v C [2009] 1 FLR 8 at paras [31] to [36]).
And in Hvorostovsky v Hvorostovsky [2009] 2 FLR 1574 CA Bodey J stated at para 42:
There are, of course, cases where a concise analysis of the identified concepts of 'needs, contributions and sharing' is a necessary and helpful intellectual tool in written or verbal or argument, provided these concepts are not elevated to the status of heads of claim. However (because ancillary relief cases tend to be fact-specific and depend essentially on the exercise of a broad discretion in the pursuit of fairness) there are also many cases where a lengthy over-sophisticated approach of this type is an unnecessary diversion, which burdens rather than assists the court.
During argument I described the English approach to equitable distribution, so alien to that obtaining in civil law countries, as holistic. I adhere to that. The approach is never to assess the award by reference to the principles or rationales as if they are separate heads of claim. Rather, the results suggested by the separate principles or rationales coalesce in the decision making process in a highly fact-specific way. So, for example, Mrs Lambert's claim for £10m was being equally justified by reference to both needs and sharing . Even Mrs Charman's £48m contained an ingredient for the satisfaction of need, even if other factors "elbowed aside" that factor .
In this case Miss Gray says confidently that H does not seek any maintenance in any shape or form. He just seeks his fair share of matrimonial property. So I asked whether it would be H's case when and if his case is heard that he would accept that he has no needs at all. Miss Gray rather ducked this question. Mr Wood has rightly pointed out that on the evidence H positively asserts his limited capital base in his affidavit at paras 16 and 18 and even goes so far to say in his statements made in the Land Registry proceedings that
With a very demanding job, it would be absurd to give away the London flat, my principal security not only for my old age but, if I am unlucky, for the near future too.
Thus, thankfully, I do not have to decide the very difficult question whether it is in fact ever possible to banish needs from an English ancillary relief exercise. On the facts of this case there can be no doubt that H's claims, were it to be allowed to proceed, would be founded to a large measure on need. It is significant that Lord Collins' third primary piece of guidance in para 73 is that "where possible the order should have the result that provision is made for the reasonable needs of each spouse". That is plainly the track down which this case would go were it permissible to do so. But needs is forbidden territory under the Lugano Convention.
Conclusions
There is a significant Lugano impediment in H's way both in terms of the modified basis of jurisdiction under s15(2) and in terms of the prior Swiss judgment which is entitled to recognition. But even if the Lugano factor were not in play I would consider it extremely improbable that H would be able to persuade a court hearing this matter substantively that he did not understand what he was doing when he signed the TR1 and the Swiss divorce settlement. Thus we have here a classic foreign post-nup, but in this case bolstered by a foreign order. In Macleod [2009] 1 FLR 641 the Privy Council at para 41 stated that in a domestic case where there was a post-nup at large a test of manifest injustice should be applied in deciding whether it should be upheld. Even though there is no counterpart to s35 MCA 1973 in Part III I would be surprised if a different test were applied. Of course I am alive to Lord Collins's sweeping away of an accumulation of judicial glosses that had piled up on Part III but I would be most surprised if he were saying that a different test should apply to a post-nup being considered under Part III as compared to one being considered under ss25 and 35 of the 1973 Act. After all, his second primary head of guidance in para 73 is that "it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all proceedings taken place within this jurisdiction".
Added to all of H's problems is the fact that he has been guilty of unexplained and unreasonable delay in making this application. On his case W changed the locks on the flat in April 2008. He can have had no doubt that W was asserting her rights as sole owner from that point. Yet he took until 30 September 2009 to make his application. That is far too long in the circumstances of this case.
My assessment is that the prospects of H obtaining a substantive order are slim indeed. My probability needle does not flicker around 50%. It is very much lower. Quite apart from the Lugano factor, I cannot find that H has a solid or substantial ground for making this application. When taken with the Lugano factor his prospects of success are negligible. His originating summons is therefore dismissed.