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

In respect of Ground 13(a), Mr Howard KC argued that the Judge’s finding that he had been materially misled at the without notice hearing had wrongly and irredeemably prejudiced (he used the word “polluted”) his consideration of the wife’s application for leave. This led to an outcome which was obviously wrong, especially as this court had subsequently found that the Judge was not in fact materially misled, and that finding was unaffected by the Supreme Court’s later decision. He drew our attention to the serious adverse findings against the wife in Potanina (FD2), all of which were made without oral or expert evidence.

Mr Howard highlighted Cohen J’s use of the term ‘divorce tourist’; it is agreed that this is a phrase which the Judge himself had first coined at the case management hearing on 5 June 2019. Mr Howard argued that this phrase was not just grossly unfair to the wife, but was also plainly factually wrong. Tourism connotes a temporary visit, yet on the Judge’s own uncontroverted finding, the wife had been habitually resident in England for at least one year as at the date of her application, and had held a UK investor visa for more than five years prior to the determination of the application. Mr Howard argued that the ‘real prospect of success’ test described by Lord Leggatt at Potanina (SC) at [89]/[92] was a lower test than the ‘good arguable case’ which had been set in Agbaje; it was argued that Cohen J’s decision was all the less secure in view of the lower threshold which the wife would now have to cross.

Lord Faulks KC argued that the ‘real prospect of success’ test described by Lord Leggatt was higher than the test which had been discussed by Lord Collins in Agbaje. He dismissed as irrelevant Cohen J’s comments about being misled; the Judge had not referred to these when dismissing the wife’s application for leave, and that what was relevant was the judge’s de novo decision.

It was argued on behalf of the husband that the Judge had used the term ‘divorce tourist’ as shorthand to sum up his conclusions; it was mere “characterisation” of his conclusions, did not constitute a factual finding, and could safely be ignored.

As to Ground 13(b), Mr Howard emphasised the wife’s firm connections with England by November 2019, and argued that the Judge was wrong to dismiss the wife’s case on the basis of a weak (or indeed “an absence” of) connection; Mr Howard emphasised that connection did not have to be substantial, and it was necessary only for there to have been a connection between one of the parties and this country. The connection did not have to be a connection of the marriage with this country, as Lord Faulks had appeared to argue. He argued that the Judge had not weighed sufficiently that the wife had lived in London since at least January 2016 and/or that her connection with Russia had been “very largely severed” (in the Judge’s own words in Potanina (FD1)) by the time of her application. Mr Howard argued that the Judge had failed to look forward to the likely position at trial, which is the relevant time to assess the “substantial ground”; he argued that the wife’s connection to England would in all likelihood be stronger at that stage.

He argued that the wife would suffer an injustice as a result of the Russian award, which had not taken account of the assets held beneficially by the husband; this was the lacuna described by King LJ at [74] - [76] in Potanina (CA1). Such was the level of the award that, as the Judge himself had earlier found, it would be unlikely to meet her reasonable needs.

The Judge was wrong, argued Mr Howard, to say that the ‘other’ section 16 factors (i.e., other than ‘connection’) “militate strongly against [the wife’s] claim”; on the contrary they supported the wife’s position, or were at least neutral. It was a positive factor that she had sought to exhaust her remedies in Russia and elsewhere, not a negative factor as the Judge assumed.

Lord Faulks argued that the Judge was right to regard the wife’s connection with England as not altogether strong. He disputed the existence of any lacuna, and in any event suggested that to allow the lacuna argument to succeed would be to characterise the Russian courts, indeed all civil law jurisdictions, as unjust. It was argued that it cannot be the purpose of the Part III procedure to allow an applicant with a limited connection to this jurisdiction to point to an alleged deficit in the law of another jurisdiction in order to “top-up” the award made overseas (in this regard Lord Faulks referenced paragraph [70] in Agbaje). The wife’s argument that she only seeks a supplemental award, and not a “top-up”, was, it was said, unconvincing.

Turning to Ground 12, Mr Nagpal KC (who led on this aspect for the wife) argued that the Judge misconstrued section 16(3) of the 1984 Act; he submitted that the point of this section was to give effect to the Maintenance Regulation. Supported by the Supreme Court’s comments in Villiers v Villiers [2020] UKSC 30 he argued that in terms section 16(3) prohibited the dismissal of a claim on the basis that England and Wales is not the appropriate jurisdiction if any of the jurisdictional criteria of the Maintenance Regulation is satisfied. He argued that the Maintenance Regulation governed both the existence and the exercise of jurisdiction; section 15 governs the existence of jurisdiction, whereas section 16 governs exercise (i.e., the court cannot refuse to exercise jurisdiction in the sense that it must be a merits-based, and not a forum-based, decision if the applicant satisfies the jurisdiction requirements in section 15(1A) of the 1984 Act).

Mr Nagpal accepted that regardless of the effect of section 16(3), it was still incumbent on the wife to satisfy the ‘substantial ground’ test in section 13 of the 1984 Act, from a merits perspective, in order to obtain leave. The Judge was wrong to dismiss the wife’s maintenance (i.e., needs-based) claim.

Lord Faulks accepted the wife’s argument that the Maintenance Regulation gave the court jurisdiction at the time of the application, and prevented a party arguing that the dispute should be heard in another forum. He argued that the jurisdictional requirement is supplemented in the case of Part III applications by the requirement to obtain leave. He agreed that the court had jurisdiction to grant leave by reason of the wife’s habitual residence, but this did not mean the judge was required to grant leave: in doing that, he needed to have regard to the section 16(2) factors.