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

This was, for one dominant reason, a highly unusual case: the sums in issue in this application far exceed those considered in any previous application under Part III of the 1984 Act. The closest comparable case offered by counsel was Juffali v Juffali [2016] EWHC 1684 (Fam); [2017] 1 FLR 729; even in that extraordinary case, there was significantly less at stake financially. Regrettably, I suspect that the unusual nature of the case caused Cohen J to fall into error in a number of material respects when dismissing the wife’s application for leave to make a Part III application. Whether the exercise which Cohen J had undertaken was a discretionary or evaluative one (in respect of which we heard some limited argument), the decision was in my judgment wrong for a number of reasons.

First, I turn to Cohen J’s treatment of section 16(2)(a) of the 1984 Act, and specifically the wife’s connection with England. Cohen J’s dismissal of the wife’s claim was largely based, it appears, on a finding that her connection with England and Wales was “recent and modest” (see §46 above). This finding was unfair to the wife for a number of reasons.

Although the Judge had found that as a matter of history the wife’s “background and married life was firmly fixed in her home country” with “no connection with England” (see §48 above; Potanina (FD2) at [88]), it should be noted that he had also accepted and recorded the uncontroverted fact that the wife had been habitually resident in England since (at the very latest) January 2016. The Judge had specifically not requested any “diarisation” of the wife’s global movements prior to 2016 (indeed Potanina (FD1) so refers: see §16 above). Thus he had fairly and accurately noted in his judgment that the “wife’s connection” prior to 2016 “…has not of course been the subject of any evidential investigation”. In light of this, it was unfair for the Judge to find (particularly with adverse implication) that “before 2015/2016” there was “no evidence” that the wife had “spent any significant time in England” (Potanina (FD2) at [63]); put bluntly, there was no evidence about her home circumstances in that period one way or another. No evidence in this regard had been called for, or permitted, and none had been given. Indeed, as I have earlier observed, at the case management hearing on 5 June 2019 the Judge had rejected the wife’s application to file additional evidence which would, it is reasonable to assume, have been likely to address this issue.

The court should assess the issue of “substantial ground” and “connection” as it appears at the date of the hearing of the application for leave, with a forward eye to the likely situation as at the date of the prospective substantive hearing. It is not assessed as at the date of the application. Section 16 of the 1984 Act is drafted in the present tense (in contradistinction to section 15 which specifically references the date of the application: see also Unger at [90]). In this case, one year had elapsed between the date of the application and the date of the hearing which led to the judgment under review. The finding of a “recent and modest” connection (judgment [70]: see §46 above) appeared to take no account of the fact that the wife had held a UK investor visa for more than five years by the date of the hearing, and only passing mention was made of the wife’s property ownership in London for a similar length of time. The Judge commented in his judgment that the husband had “roundly challenged” these facts relevant to connection (among others), but the Judge was wrong about this; the husband had not challenged the timing of the acquisition of either the visa or the London property.

When refusing permission to appeal, the judge referred to the wife’s “absence of connection with England and Wales” (emphasis by underlining added). Even allowing for a degree of judicial shorthand in expression, this suggested a further retreat from what the Judge had earlier described as a “weakness” of connection (Potanina (FD2) at [86]). The Judge’s phrase “absence of connection” reveals to my mind a lack of real appreciation of the actual connections to which the wife could uncontroversially point in support of her case that she satisfied sufficiently the statutory test.

In a similar vein, the Judge found in November 2019 that the wife’s links with Russia were “infinitely greater” (Potanina (FD2) at [70]: see §46 above). While historically she plainly had strong links to Russia, there was proper cause to believe on the evidence before the Judge that by the time of the hearing of her application in the autumn of 2019 the situation had materially changed. Indeed, ten months earlier the Judge had made a directly contrary finding in Potanina (FD1), that is to say that by the time of her application the wife had “very largely severed” her links with Russia; this had not been challenged to any significant degree by the husband.

The effect of downplaying the wife’s connection with England, wittingly or unwittingly, caused the Judge erroneously to treat her claim as an attempt to achieve a top-up award through the English courts (i.e., to top-up her Russian provision to that which she would have received in an English divorce); doubtless the Judge would have had in mind that such an approach would “not be appropriate” under Part III (see Agbaje at [70]).

Secondly, at the on notice hearing of the wife’s application, Cohen J formed an adverse view about the wife’s motivation for taking up residence in this country, namely in order to make a financial remedy claim. His finding that her application represented a “classic example” of a spouse who had settled here in order to “take advantage” of the “more generous approach” in the English Court (phrases directly lifted from Agbaje at [72]) led him to accept the suggestion of the husband’s counsel that to allow the wife’s claim would “effectively” place “no limit to divorce tourism” (see §48 above). This conclusion is unfair to the wife, and indeed unsound, for at least two reasons:

Thirdly, the Judge had earlier found the wife to be (and had so described her) a “fully entitled wife” as that phrase is understood in the field of matrimonial finance litigation (see §38 above). Yet, the wife had received an award in Russia which was “by English standards”, in the Judge’s own finding, “paltry”; “to that extent” he accepted that she has suffered “hardship” (Potanina (FD2) at [85]). Moreover, as the Judge himself recognised, the wife could argue that the award would not meet her reasonable needs (see [91]). King LJ had formed a similar view in this regard (Potanina (CA1) at [16]: “a tiny proportion”), as did Lord Leggatt who described the wife’s award (in relative terms) as a “tiny fraction” (Potanina (SC) at [17]). The disparity in the award to the wife compared to the assets retained by the husband was attributable (on the wife’s case) to a lacuna in the Russian law. These points expose two material shortcomings of the judgment:

Fourthly, the Judge’s finding that he had been materially “misled” by the wife at the without notice hearing in January 2019 featured large in his reasoning when granting the husband’s application to set aside the order granting leave (see Potanina (FD2) at [45]-[61]); this reflected the fact that as the Judge observed “much of the [on notice] hearing” had been taken up with this issue. However, only in limited respects indeed had the husband alleged that the misrepresentations were relevant to the wife’s fresh application generally (and the relevant section 16 factors), and her connection with England specifically. When refusing the wife permission to appeal against the dismissal of her application for leave, the Judge repeated that he “had not been given a full picture of the case…” at the without notice hearing. Yet:

Fifthly, I find it difficult to see how the Judge could conclude that, having effectively dismissed the wife’s connection with this country, the “other” section 16 factors “count heavily” against her (Potanina (FD2) at [89]); this was in my judgment a misleading characterisation of their application to these particular facts. The Judge had already found that the “financial benefit” (section 16(2)(d) of the 1984 Act) which the wife had received in Russia was relatively “paltry”. It was therefore unfair for him to suggest that it was only “the wife” who regarded herself as having suffered “a very significant injustice” ([92]), when he himself had found that she had an argument for saying that she had “suffered hardship” and that the Russian award would not (by English Court standards) be likely “to meet her reasonable needs”. Objectively viewed, there was a reasonable case that the outcome of the Russian proceedings had been unjust to the wife. That the wife had sought to pursue her remedies in Russia and elsewhere was (I accept Mr Howard’s argument in this regard) a point in her favour when considering section 16(2)(f) of the 1984 Act; moreover, as this court earlier observed, the wife could not mount a maintenance (alimony) claim in Russia (Potanina (CA1) at [13]).

Finally, it is difficult to ascertain precisely how the Judge had applied the merits-based threshold test from Agbaje. He reproduced the entirety of paragraph [33] of Agbaje within the first half of his judgment (when determining the husband’s application: see Potanina (FD2) at [43]); in the concluding words of the judgment he referred to there being “no solid basis for making an award”, which I have assumed was an allusion to Lord Collins’ merits-based threshold test.  But I find no other analysis of the wife’s case by reference to the threshold test and the caselaw on its interpretation which then applied. In my judgment, it was incumbent on the Judge to have addressed in full the issues which I myself have commented upon at §83 to §92 above so as to demonstrate why the wife did not have sufficiently substantial or solid grounds for making the application. He did not do so.

Of course, with the benefit of Lord Leggatt’s clarifying remarks in the instant case, it was for the wife to show that her prospective claim enjoys something akin to a real prospect of success in achieving some measure of further financial relief under Part III. I accept that this test sets the bar to a degree lower than that set by Lord Collins said in Agbaje. Furthermore, the wife did not have to demonstrate that she was entitled to all forms of financial relief; as Lord Collins said in Agbaje at [73]:

“The amount of financial provision will depend on all the circumstances of the case and there is no rule that it should be the minimum amount required to overcome injustice. … the grant of leave [under Part III of the 1984 Act] does not inevitably trigger a full blown claim for all forms of ancillary relief”.

For the reasons which I set out below in relation to disposal (§109 to §115 below) the wife had, in my judgment, amply established that there was substantial ground for her claim for some financial relief, even if not a “full blown” award.

I would allow the appeal on Ground 13.