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

It will already be apparent that the judgment under review in this appeal was the second judgment to be delivered by Cohen J in this case; the first judgment had been delivered ex tempore on 25 January 2019 (unreported) at the conclusion of the without notice hearing (i.e., Potanina (FD1)). In that first short judgment, the Judge had explained why he had given leave to the wife to bring her claim under Part III of the 1984 Act.

Following the on notice hearing in October 2019, Cohen J delivered a reserved judgment (on 8 November 2019) in which he explained his reasons for: (a) granting the husband’s application to set aside the grant of leave, and (b) dismissing the wife’s renewed application for leave.

The judgment opens with an introduction to the claim, and a recital of the background history. In that narrative, Cohen J described the marriage as “a long one”; he described the wife as a “fully entitled wife”, by which I understand that he regarded the wife as entitled to the full range of financial relief consequent upon divorce, without any discount or special factor limiting her claim (see, on the issue of entitlement in a Part III 1984 Act claim the more recent decision of Unger and another (in substitution for Hasan)v Ul-Hasan (deceased) and another [2023] UKSC 22 at [8]: “Unger”).

The Judge dedicated the next, extended, section of his judgment to a discussion of the wife’s case; he referenced her complaint about a “lacuna” in Russian law, by which she protested that the assets in which the husband had a beneficial but not a legal interest were omitted from account in the distribution of property on divorce (in this regard reference was made to Article 34 of the Russian Family Code). He discussed the wife’s application for leave, before turning to ‘Russian law’, and ‘the Russian legal proceedings’. In that latter regard, the Judge said – in terms ([35]) – that “it seems clear to me that in every instance the Russian courts have consistently and properly applied Russian law… Russia does not recognise beneficial ownership in the way that England does”; and later ([36]), “it is widely known that Russia … will only divide between the spouses what is held in their individual or joint names”.

Later in the judgment, at Potanina (FD2) [52], Cohen J described how at the on notice hearing in October 2019 he had been shown a number of documents from the Russian court proceedings, in particular the Russian Code and the Russian judgments, which he said illustrated a number of misrepresentations which he felt had been made to him at the without notice hearing; these documents had (he said) explained why the wife’s claims in Russia had failed. He repeated that the documents which had been produced: “… show a proper application of the [Russian] law” (ibid at [52(ii)]).

Cohen J’s apparently unqualified acceptance that the Russian court had properly applied its domestic law was not, however, uncontroversial (see King LJ: Potanina (CA1) at [75] and [87]: §56 and §52 respectively below). Indeed in accepting the position taken by the Russian courts, the Judge had explicitly, or at least implicitly, rejected the arguments presented by the wife at the on notice hearing in at least four material respects:

The Judge turned to the approach of the English court on an application for leave to make a claim under Part III of the 1984 Act and specifically to the husband’s application to set aside the grant of leave. He concluded this section of his judgment, explaining his reasons for setting aside the earlier grant of leave, by saying at [59]:

“I am in no doubt that if I had had the full picture before me on 25^th January 2019 I would not have granted the wife leave to make her application. I am further satisfied therefore that the grant of leave was given as a result of material misleading of the court, however unintentional that might have been” (Emphasis by underlining added).

Thus at [60], the Judge indicated his intention to set aside the grant of leave, “and determine the wife’s application afresh”.

It is necessary, for the present appeal, to consider in a little more detail the second section of the judgment which dealt with the wife’s renewed application for leave (i.e., [65] to the end at [93]).

Early in this second section, Cohen J recorded the uncontentious fact that the wife could satisfy the jurisdictional ground in section 15(1) of the 1984 Act; it was agreed that she had been habitually resident in England and Wales “for one year ending with the date of her application” (see §22 above). Article 3 of the Maintenance Regulation was the dominant provision in relation to the wife’s needs-based claim, and she satisfied this too.

Cohen J then discussed the wife’s connection with England. He rightly pointed out that the wife’s connection with England “since the breakdown of the marriage has not, of course, been the subject of any evidential investigation” (Potanina (FD2) at [68]). He made no reference in this context to the fact that the wife had successfully applied for a UK investor visa in 2014; he nonetheless commented that the wife had purchased a “small” property in London (worth then £2.5 million) in 2014. He concluded that the wife’s:

“… connection with England and Wales is both recent and modest. The parties’ connection with Russia, the country where the parties were born, grew up, married, lived and divorced was infinitely greater” (ibid at [70]: emphasis by underlining added). 

As for the Russian award to the wife, he said this at [85]:

“This brings me to a consideration of the award that the wife received. I accept the wife's submission that what she has received is by English standards a paltry award bearing in mind the length of the marriage and the wealth accumulated by the husband during the marriage. If the wife and the husband had been England resident [sic] and had divorced in England, she would have received an award of a vastly higher sum. To that extent I accept that she has suffered hardship. Further, the award that the wife has received would probably not, in an English case based on these facts, be likely to meet her reasonable needs”. (Emphasis by underlining added).

The Judge’s discussion and analysis is to be found in the concluding six paragraphs of the judgment, as follows:

“[88] … I have come to the view that this is a classic example of a spouse whose background and married life was firmly fixed in her home country and who had no connection with England, whether by presence of the parties or their assets or business activities, seeking after the breakdown of the marriage to take advantage of what is a more generous approach to her claims than she has been able to achieve in her home country after the fullest possible use of its legal system. Mr Bishop is right to say that if this claim is allowed to proceed then there is effectively no limit to divorce tourism.

[89] Should I, therefore, allow this claim to proceed on a limited basis only, namely that of needs? Even if I were to put aside the weakness of the wife’s connection with this jurisdiction and instead give full respect to her habitual residence in England and Wales, a survey of all the other s.16 matters counts heavily against the wife.

[90] I accept of course that if the wife was successful she would achieve a better standard of living and one to which she could easily argue she is entitled. But it is not the job of the English courts to correct what might be thought to be the deficiencies of the legal systems of another country in the circumstances which are shown when the s.16(2) matters are analysed. It would be arrogant for this court to assume that England and Wales is the sole arbiter of fairness. It is easy to imagine the offence that would be caused if the roles of England and Wales on the one hand and Russia on the other were the roles of the countries reversed.

[91] I do not consider it proper for the court to focus on needs to the exclusion of the other s.16 factors. To most people it would seem inconceivable that someone who has received an award of $40-80m could argue that reasonable needs have not been met, but each case is fact-specific and I accept that the wife could argue that her reasonable needs have not been met. However, the other s.16 factors militate strongly against her claim proceeding.

[92] Simply because the wife has suffered what she regards as a very significant injustice in that other country and has come to England after the breakdown of the marriage does not in itself make the case appropriate for determination in England and Wales.

[93] I am satisfied that there is no solid basis for making an award and I therefore accede to the husband’s application and dismiss the application for leave to bring a claim under Part III of the 1984 Act”. (Emphasis by underlining added).

Finally for present purposes, it should be recorded that in dealing with the Maintenance Regulation, Cohen J rejected the arguments of both parties, and concluded that:

“[79] In my judgment the effect of section 16(3) is to disentitle a judge from dismissing a claim by an applicant for maintenance (used in the sense of a needs-based claim, whether capital or income) solely on the basis of the absence of connection of such applicant. It would not be inconsistent to dismiss a claim, if appropriate, on grounds relating to matters other than the habitual residence/connection of the applicant with England and Wales. But, in applying the section 16(2) factors I must give weight to [the wife’s] habitual residence in this jurisdiction” (Emphasis by underlining added).

The wife sought permission to appeal. When refusing permission to appeal, the Judge recorded his reasons (in writing) as follows: