CA-2024-001698 - [2025] EWCA Civ 1136

For the reasons set out above, I would allow the appeal on both Grounds 12 and 13 and set aside Cohen J’s dismissal of the wife’s application for leave under Part III of the 1984 Act.

This case has already consumed very substantial resources of the parties and the court. It is notable that the wife made her Part III 1984 Act application nearly seven years ago, and it has not yet even satisfactorily completed the leave stage. It seems to me that this court is in a good position to determine the wife’s application, and I consider it appropriate to do so. It is not necessary in this regard to take any account of the wife’s fresh evidence.

It was never in dispute that the wife was habitually resident in England in October 2018 when she made her application, and had been so for at least one year at that point (Article 3(b) of the Maintenance Regulation and section 15(1) of the 1984 Act); the agreed evidence was that she had lived in England since January 2016 at the latest.

Having regard to the evidence which was before Cohen J in 2019, I have little difficulty in concluding that she had substantial, solid, ground for making an application for financial relief under Part III of the 1984 Act (section 13 of the 1984 Act). I say so for the following reasons.

Even in 2019, the wife had a connection with this country (section 16(2) of the 1984 Act); this was, in my judgment, a real and meaningful connection. I repeat that she had held a UK investor visa, she owned property here, she was (it was agreed by the husband) habitually resident here and had been so for at least one year even at that time. Indeed, the evidence before Cohen J (which had not been materially challenged) was that she had made her base here from January 2016 at the latest. Looking forward from November 2019, there was a reasonable prospect of her remaining in this country for the foreseeable future. There was evidence before the court (which was, as I have earlier mentioned, accepted by Cohen J in January 2019 and not materially challenged by the husband) that the wife had very largely severed her ties with Russia. Her connection to her former home country was increasingly tenuous.

For present purposes I share Cohen J’s view that the wife would probably be able to argue that she is/was “fully entitled” to a wide range of financial relief consequent upon divorce, without any discount or special factor limiting her claim. In the circumstances, she was well placed to present a persuasive argument in 2019 that the outcome of the Russian matrimonial proceedings had been unjust to her; this may well have been the result of what she had called the lacuna in the law (i.e., assets of which the husband had a beneficial interest but not a legal interest were omitted from account in the distribution of marital property). Further, the wife did not accept that the Russian court had properly applied the law (see §41 above), and as King LJ had earlier remarked this required detailed analysis in its own right (see §55 above).

Lord Leggatt had fairly observed (see §90 above) that the sum awarded by the Russian courts was only a “tiny fraction” of the sum which the wife would have received if the marital assets divided had included assets beneficially owned by the husband. The discrepancy between her award of the marital assets and the husband’s retained share was significant; the discrepancy between what she had recovered in Russia compared with what she would have recovered had the case been heard in this jurisdiction was equally significant. The wife could also persuasively argue that, having regard to the lavish lifestyle which she had enjoyed while married, her reasonable needs would not be met by the Russian award. Indeed, as Cohen J himself recognised, given the size of her award in these circumstances, the wife “could argue that her reasonable needs have not been met” (Potanina (FD2) at [91]). In my judgment, the wife was in a strong position to argue in all of these circumstances, that it would be “appropriate” for the court in this country to make an award (section 16 of the 1984 Act).

The wife’s claim is a potentially complex one, not giving of simple or summary disposal (see Lord Hope’s final comments in the extract from Three Rivers, cited at §58 above); it is a claim for which there is a well-recognised remedy, and there is of course ample precedent for the outcome she seeks. There was a reasonable basis to conclude that the claim is neither highly speculative nor (as I have demonstrated above) is it without substance. Insofar as the longer extract from Lord Hope’s judgment in Three Rivers adds to the test in this regard (see [91] of Potanina (SC)), which I believe in general terms it does, it seems to me that the wife’s application amply falls within the criteria suggested therein. Moreover, there is a real prospect that further material supporting the wife’s case will emerge, through disclosure “or otherwise”, if the case proceeds to full hearing (see Lord Leggatt in Potanina (SC) at [92]: §77 above).

I would therefore grant the wife leave to bring her claim under Part III of the 1984 Act, and remit her application to the Family Division of the High Court in the first instance for Peel J (the National Lead Judge of the Financial Remedies Court) to allocate as appropriate to a judge of the Family Court, in the first instance for a case management hearing.

I agree.

I also agree.