Barnett v Barnett

This is an application by a former wife, made pursuant to section 13 of the Matrimonial and Family Proceedings Act 1984, for leave, or permission to apply for financial relief pursuant to Part III of that Act after an overseas divorce between the parties.

I can deal with the essential factual background and context quite shortly. Both parties plainly have an English domicile of origin. They were married for over 40 years. During the bulk of their married life they lived in England, and for many years in the area of Stoke-on-Trent in Staffordshire. Their daughter continues to live in Stoke-on-Trent. Their son currently lives in Bulgaria. Since 2009 the parties themselves have both lived in Bulgaria, but now at different addresses in the same town. Sadly, the very long marriage between them broke down in 2012 and there has been a final divorce between them in Bulgaria in 2013.

It appears that there is, or may be, very little remaining capital between them, but they each have pensions. In the case of the wife, she simply has the British state old age pension. In the case of the husband, he has a British miner’s pension. The wife says that she believes that he receives an annuity from that pension in the sum of about £800 a month, or just under £10,000 a year. She seeks a share in that pension, no doubt reflecting the fact that he earned it during his working life as a miner for many years during the subsistence of their marriage together. The divorce court in Bulgaria has apparently stated that that court has no power or jurisdiction in relation to this British miner’s pension; in other words, it is here and only here that the wife can make any claim against it. She seeks to do so pursuant to the provisions of Part III of the 1984 Act. Before she can make an application under Part III, she must first obtain the leave of the court pursuant to section 13 of that Act. The test for granting leave is whether the court considers that there is substantial ground for the making of an application for an order for financial relief under that Act.

A question has been raised as to whether or not the English court will have any jurisdiction. But section 15 (1) of the Act provides that there is jurisdiction on the ground, amongst others, that:

“(a)

either of the parties to the marriage was domiciled in England and Wales on the date of the application for leave … or was so domiciled on the date on which the divorce … obtained in the overseas country took effect in that country”

The wife has made a statement dated 18 July 2014 in which she makes plain that her domicile of origin is English. She says that she currently lives in Bulgaria with her son there; but she says that she intends to keep her English domicile and travels back whenever she can to stay with her daughter in Stoke-on-Trent. She explains in her statement that it is her intention to return to live in England when she can afford to do so. In other words, she is in something of a “Catch 22” position at the moment. She does not live in England and Wales because she does not have sufficient income. It is only if and when she is successful on the proposed application that she will have sufficient income to be able to return to live here full time. In those circumstances it is strongly arguable (and I put it no higher for the purposes of the present hearing) that she retains her English domicile of origin.

More generally, I am clear that in this case there is substantial ground for the making of the proposed application for financial relief following the Bulgarian divorce, albeit that the scale of the case is obviously a very small one. So for these reasons I unhesitatingly grant leave to this wife to make an application under Part III of the 1984 Act.

The following very important procedural matter now arises. Since April 2014 there has been established the statutory family court. This is a single nationwide court which may sit anywhere. Generally, Part III of the 1984 Act makes references to “the court”. The interpretation section of that Part, namely section 27, as amended, defines that in that Part of that Act ‘“the court’ means the High Court or the family court”. It thus seems quite clear that, so far as concerns the statute, jurisdiction under Part III is conferred on both the High Court specifically and the family court generally.

The present application for leave to apply was issued on 10 June 2014. The solicitors headed the name of the court in which it was issued as “Principal Registry of the Family Division”. It has in fact been listed for hearing before me today sitting in the Royal Courts of Justice and apparently sitting in the High Court. I will certainly treat myself as sitting in the High Court for the purposes of this application for leave today.

But the question then arises, where should the substantive application be issued if leave is granted? The solicitors enclosed with their original application for leave a draft application form which contemplated that the substantive application might be issued “In the Stoke-on-Trent County Court”. As a result, an official of the Central Family Court wrote a letter date 10 June 2014 which includes the following:

“The section 12 application [viz. the proposed substantive application] is returned as this can only be issued once a judge has granted permission.” – Pausing there, that is clearly a correct proposition. The letter continues – “We do not think that the section 12 application can be issued at Stoke-on-Trent Combined Court for jurisdictional purposes (please refer to FPR 2010 rule 8.23-8.28).”

The correct position in fact appears to me to be as follows. The Act itself clearly provides, as I have already explained, that jurisdiction lies generally with “the court” which means the High Court or the family court. When the single family court came into existence, the allocation and distribution of business became the subject of The Family Court (Composition and Distribution of Business) Rules 2014, SI [2014] Number 840 (L.13). So far as concerns the present situation, the relevant part of that Statutory Instrument is Part 5, headed “Distribution of business of the family court”. Rule 14 within Part 5 provides that:

“14.

Subject to the provisions of this Part or of any other enactment, any jurisdiction and powers conferred by any enactment on the family court, or on a judge of the family court, may be exercised by any judge of the family court.”

That, however, is subject to rule 15 which is headed “Allocation of proceedings in Schedule 1”. Rule 15 provides as follows:

“15.

(1) An application in a type of proceedings listed in the first column of the table in Schedule 1 shall be allocated to be heard by a judge of the level listed in the second column of that table.

(2)

Paragraph (1) and the provisions of Schedule 1 are subject to the need to take into account the need to make the most effective and efficient use of local judicial resource and the resource of the High Court bench that is appropriate given the nature and type of the application.”

When one turns to Schedule 1, one finds at paragraph 4 of that Schedule the following. In the first column there is a reference to

“4.

Proceedings under –

(a)

the Matrimonial and Family Proceedings Act 1984, sections 13 and 12 (permission and substantive application) where –

(i)

the parties do not consent to permission being granted; or

(ii)

the parties consent to permission being granted but do not consent to the substantive order sought …”

Beside that in the second column of the table are the words “Judge of High Court judge level”.

In the present case there is no question of the parties currently consenting either to permission being granted or to the substantive order sought. That clearly appears from the witness statement of a lady in Bulgaria who served the proceedings and documents upon the husband there. The maker of the statement says at paragraph 5:

“I can confirm that [the husband] has received the documents as he intimated his anger about them to his and the wife’s son …”

So the starting position, by application of rule 15(1) and the provisions of the table in Schedule 1, is that the substantive proceedings should be allocated to be heard by a judge of High Court judge level. However, it can be seen from rule 15(2) that the whole of paragraph (1) of that rule and the provisions of the Schedule

“are subject to the need to take into account the need to make the most effective and efficient use of local judicial resource and the resource of the High Court bench that is appropriate given the nature and type of the application.”

These parties have no connection whatsoever with London. Their historic and continuing connection with England is essentially with Stoke-on-Trent, where they lived for many years and where their daughter still lives and where, as she explains, the wife returns whenever she can. On the face of it, therefore, the “local judicial resource” most appropriate to this case is the resource of the family court sitting at Stoke-on-Trent.

I do not in any way at all under-estimate or minimise the very considerable importance of this case to these parties. It appears that they have very modest means indeed, and clearly the husband’s pension which is now under attack is by far their greatest source of income. Nevertheless, by any objective or absolute standard, the sums involved in this case are extremely small, namely, as I have said, an income of around £10,000 per annum. Further, the case appears to be one of legal simplicity. The facts are not complicated. The headline facts appear to be as I have already summarised them. In my view it would not be an “effective and efficient use” of the resource of the High Court bench, and would indeed be very wasteful of the resource of the High Court bench, whether sitting here in London or somewhere more locally to Stoke-on-Trent such as in Birmingham or Manchester, for this case to be issued and heard in the High Court.

In my view the effect of rules 14 and 15 of the Statutory Instrument, read together with the definition of “the court” in the 1984 Act itself, does mean that at the point of granting leave the court, acting judicially, may make a decision as to where the substantive application should be issued and as to the allocation of the future substantive proceedings.

Accordingly, I propose to grant leave in this case and then to make an order as follows:

“Pursuant to rules 14 and 15(2) of the Family Court (Composition and Distribution of Business) Rules 2014, SI [2014] Number 840, and taking into account the need to make the most effective and efficient use of local judicial resource and the resource of the High Court Bench, given the nature and type of the proposed substantive application, the substantive application shall be issued in the family court at Stoke-on-Trent and allocated to a district judge for all further hearings.”

This morning Miss Charlotte Hartley, who has presented the case with the utmost clarity on behalf of the wife, has said that her instructing solicitors are in fact located in Southport and have accordingly now sought or suggested that the substantive proceedings should in fact be issued in the family court in Liverpool. I am not prepared to accede to that suggestion. Generally, a venue should be more influenced by convenience to the parties than convenience to a given firm of solicitors. As I have said, the connection of these parties appears to be primarily with Stoke-on-Trent, and I am not aware that either of them has any connection with Liverpool. I am, however, willing to add to the above paragraph of the order the following additional words in brackets:

“(This paragraph does not preclude the family court in Stoke-on-Trent from later transferring the proceedings to an alternative venue of the family court if more convenient or appropriate, taking into account the position of all parties.)”

What I have said so far relates to, and deals with, issue and allocation of the proposed substantive application now that I have granted leave. However, it is quite clear that there is a continuing problem that a significant number of applications for leave (or permission) under section 13 are issued here in London and find their way to High Court judges sitting in the Royal Courts of Justice, when the parties and the case have no connection at all with London and the assets and issues in the case are objectively small and uncomplicated. It is, frankly, wasteful of the time and resource of the High Court that again and again High Court judges, sitting here in the Royal Courts of Justice, have to take up time (even if only relatively short amounts of time) dealing with these applications; and wasteful of private or publicly funded legal costs that parties, who may live or instruct solicitors a long distance away from London, still trek here to make these applications which, frankly, are often something of a formality.

Clearly, the decision whether the starting point under the Composition and Distribution of Business rules that these applications must be heard by a judge of High Court level, pursuant to rule 15(1) and Schedule 1, is displaced by the provisions and effect of rule 15(2) must be a judicial decision. But, speaking for myself, I cannot see any reason why, in routine applications for leave under section 13 of Part III of the Act, applicants or their solicitors, such as the solicitors in the present case, cannot apply first to the family court sitting at some convenient and appropriate local venue for a district judge of the family court at that venue to make a decision as to whether or not the requirement to make the application for leave to a High Court judge (generally here in London) is displaced by application of rule 15(2). If that were to be done, it seems to me that a considerable amount of wasteful time and resources and general inconvenience could be avoided. It is entirely within the spirit of the new single family court and rule 15(2) itself that there should be a judicial allocation decision at the first possible moment in all these cases as to making “the most efficient and effective use of local judicial resource” and avoiding wasting “the resource of the High Court bench”. The allocation decision would of course be made on paper as “box work”, with minimal formality. I mention, however, that the effect of the Family Procedure Rules 2010, rule 8.26(a) (which refers to “… the hearing of the application by a judge, but not a district judge …”) appears to be that even in a local venue of the family court a non-consent application for leave must be heard by a circuit judge or a recorder, but not by a district judge. This is an anomaly that the rules committee should consider.

The jurisdiction under Part III of the 1984 Act is now long established and there is no novelty about it. Most cases are no more complicated than financial remedy cases routinely heard by district judges in local courts. There is no justification or need for these cases to come anywhere near a High Court judge unless there is some special feature, or complexity, or very substantial assets. Further, in my view the decision whether or not to grant leave is, in most cases, eminently suited to local district judges.