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

The relevant provisions of the 1984 Act, as it applied in November 2019, are set out in full below. The 1984 Act has been amended since the order under appeal (see §23 and §24 below).

Part III of the 1984 Act opens with section 12 which provides:

“(1)

Where—

(a)

a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and

(b)

the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales,

either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act”.

Section 13 of the 1984 Act reads:

“(1)

No application for an order for financial relief shall be made under this Part of this Act unless the leave of the court has been obtained in accordance with rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order.

(2)

The court may grant leave under this section notwithstanding that an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property to the applicant or a child of the family.

(3)

Leave under this section may be granted subject to such conditions as the court thinks fit.”

Section 15 deals with the jurisdiction of the court and identifies the “jurisdictional requirements” in section 15(1) as:

“(a)

…, or

(b)

either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or was so resident throughout the period of one year ending with the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or

(c)

…”

In the version of the 1984 Act which was in force at the time of the hearing before Cohen J, section 15(1) was expressly subject to section 15(1A) which read:

“(1A) If an application or part of an application relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, those requirements are to determine whether the court has jurisdiction to entertain the application or that part of it.”

This subsection was amended after Brexit, by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019/519 Sch.1(1) para.13 (‘the Jurisdiction (EU Exit) Regulations’).

At the time of the 2019 hearing, section 16 continued, under the section heading: “Duty of the court to consider whether England and Wales is appropriate venue for application”:

“(1)

Subject to subsection (3), before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application.

(2)

The court shall in particular have regard to the following matters—

(a)

the connection which the parties to the marriage have with England and Wales;

(b)

the connection which those parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated;

(c)

the connection which those parties have with any other country outside England and Wales;

(d)

any financial benefit which the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a country outside England and Wales;

(e)

in a case where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;

(f)

any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and if the applicant has omitted to exercise that right the reason for that omission;

(g)

the availability in England and Wales of any property in respect of which an order under this Part of this Act in favour of the applicant could be made;

(h)

the extent to which any order made under this Part of this Act is likely to be enforceable;

(i)

the length of time which has elapsed since the date of the divorce, annulment or legal separation.

(3)

If the court has jurisdiction in relation to the application or part of it by virtue of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, the court may not dismiss the application or that part of it on the ground mentioned in subsection (1) if to do so would be inconsistent with the jurisdictional requirements of that Regulation and that Schedule.

(4)

In this section, “the Maintenance Regulation” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.”

Subsections 16(3) and (4) were repealed after Brexit by Schedule 1(1) para.13(3)(b) and (c) of the Jurisdiction (EU Exit) Regulations.

Section 17 of the 1984 Act sets out the range of potential orders for financial provision and property adjustment which can be made on an application under Part III of the 1984 Act. Section 18 outlines the matters to which the court is to have regard in exercising its powers under section 17; this section specifically references section 25 of the Matrimonial Causes Act 1973.

The Maintenance Regulation was in force at the time of the application, and applied “to maintenance obligations arising from a family relationship, parentage, marriage or affinity” (Article 1). The Regulation aims to “preserve the interests of maintenance creditors and to promote the proper administration of justice within the European Union”; it mattered not that the defendant was habitually resident in a third state (see recital 15 to the Maintenance Regulation).

Article 3 of the Maintenance Regulation provides:

“In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

(a)

the court for the place where the defendant is habitually resident, or

(b)

the court for the place where the creditor is habitually resident, or

(c)

the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or

(d)

the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.

Section 15(1A) and 16(3) were inserted into the 1984 Act to give effect to the Maintenance Regulation by the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484) (‘CJJ(M)R 2011’) and came into effect on 18 June 2011, that is to say, after the Supreme Court decision in Agbaje.

The Maintenance Regulation no longer applies in the UK.