Case No. ZC15D00301

[2018] 1 FLR 965). Indeed, I commend the approach, given the huge income that the Husband had suddenly obtained towards the end of the marriage. It was a very sensible way to allow both parties to achieve independence in retirement at a good standard of living. 10.There is also no doubt whatsoever that the parties discussed the Wife’s earning capacity. At the time, the Wife was hardly working. Regrettably, she undoubtedly underplayed her earning capacity, mentioning modest figures such as €150 per day working only two days per week. In my view, this failure has led to many of the problems that have since arisen. She was, however, adamant, that she should be entitled to redevelop her earning capacity without it affecting her maintenance. The Husband undoubtedly accepted that condition. For example, his then solicitors wrote “our client’s proposals in relation to maintenance are generous and provide your client with the ability to obtain her own income without that now affecting the level of spousal maintenance that she is being paid”. 11.In consequence, a consent order was approved by Gibbons DJ sitting in the Central Family Court in November 2017. I do not need to set out the exact detail of how the equal division of the various assets was achieved, although it did provide for a sale of the French property where the Wife and children were living with payment of the proceeds of sale to her. The maintenance provision was 50% of the Husband’s net salary, including his bonus, but not taking into account his allowances. His basic net pay was split as to 25% payable as spousal maintenance to the Wife and, in effect, 8.33% to each child, until they respectively attained the age of 18. I make the point that this was a large maintenance award of just over £20,000 per annum per child, excluding school fees. From 2028, the spousal maintenance reduces to 20%. The termination date was the first to occur of the retirement of either party or the Wife’s sixty-fifth birthday, whereupon the order would stand dismissed with a section 28(1A) direction preventing any further extension. There were also the usual provisions for the order to end on death or remarriage/cohabitation as well as the normal “further order” provision. 12.Turning to the bonus, the Wife was to receive 50% of the bonus until 2020; 41.67% until 2021; 33.34% until 2026; 25% until 2028; and 20% until 2033 or the Husband’s retirement. By my calculations, this meant that, initially, the wife received very nearly £150,000 per annum in maintenance for herself as well as the child maintenance. The Husband gave undertakings to provide documentation as to his income and bonus. He also gave an undertaking not to seek to vary the structure of his remuneration package and he accepted that, if there was a change, a review of the maintenance could take place. He undertook to share with the Wife equally his Luxembourg state pension on receipt at 65. Finally, he was to pay the children’s school fees for so long as he received a school fees allowance. If there was a shortfall, it was to be met equally. If the allowance ended, the children would attend a non-fee paying school. 13.In December 2017, the Wife moved to Luxembourg with the children. She purchased a property there and, in 2019, she obtained a fixed-term employment contract as a teacher, which was, in fact, renewed several times. By mid 2020, she was earning €3,694 per month net. Whilst I entirely accept that this was very different from the figure of £1,125 pm set out in the Form D81, it was completely dwarfed by the Husband’s income. 14.In September 2019, the Husband applied to vary the maintenance order in Luxembourg. Both parties accept that, in accordance with the EU Maintenance Regulation in force at the time, it was the only court with jurisdiction, namely the Wife’s habitual residence. The application was made less than two years after the order had been made by Gibbons DJ and even if the amount the Wife had been receiving by way of maintenance was reduced pound for pound for her additional earnings, the benefit to the Husband would have been modest given the costs he must have incurred.15.The Luxembourg Court dismissed the Husband’s application to vary in June 2020. The court accepted that the Wife’s plea of “inadmissibility” could not succeed and that there was jurisdiction, but took the view that the agreement between the parties was a contract resulting from the free will of the parties, which must, except in very serious, exceptional and unforeseeable circumstances at the time of its conclusion, be respected in all circumstances. The court specifically relied on the letter I have already quoted from the Husband’s solicitors saying that his offer provided the Wife with the ability to obtain her own income without that affecting the level of spousal periodical payments. In consequence, her change in income was provided for or, at least, not excluded. It makes the point that termination on her retirement of itself shows that it was expected she would have employment. Ms Eleri Jones, on behalf of the Husband, criticises this ruling as not being in compliance with our law by relying on the agreement as a contract and setting far too high a bar to variation. Whilst there is force in those points from the perspective of English law, I am clear that there was no merit in the Husband’s application in Luxembourg. If there had been jurisdiction here, I would have dismissed any variation application, at the time, without hesitation. The deal had been done less than two years before. The only real change in circumstances was the increase in the Wife’s income, which the correspondence showed she was allowed to earn without it affecting the level of maintenance. 16.For reasons that I simply do not understand, the Husband appealed in Luxembourg in 2020. Inevitably, at least to my eye, the appeal court dismissed the appeal later in 2020. The judgment again shows the court relying on the agreement being a contract that is legally binding on those who have made it. The point was made that the order did not say it was conditional on the Wife residing in France or that she had to refrain from engaging in employment. Indeed, her retirement date was targeted, with reference to her work potential so it was taken into account. Moreover, as the French property was to be sold, the need for her to move was known. The contractual agreement had to be respected unless there were highly serious, exceptional and unforeseeable circumstances which might risk personal and unacceptable tragedies, but there had not been a deterioration in the Husband’s circumstances. 17.In early 2021, the Wife inherited the sum of £138,000 following the death of her father. In addition, the company for which she worked was taken over by the Government of Luxembourg and she received a permanent contract at a better rate of pay but, other than that, the circumstances remained entirely the same, when, on 22 March 2021, the Husband made an application in this jurisdiction to vary the consent order. This was only five months after his appeal in Luxembourg had been dismissed. I accept that, by then, the UK had left the European Union and the Maintenance Regulation no longer applied but I have to say that I consider this application to be entirely misconceived and, at the time, utterly hopeless. It appears to me that the Husband was having the most severe case of “buyer’s remorse” over the 2017 agreement he reached with the Wife but that does not in any way justify what was a sustained campaign of litigation at huge financial and emotional cost to these parties over a number of years. 18.The Wife responded, on 6 May 2021, by applying to dismiss the application on the basis that the Luxembourg court retained exclusive jurisdiction as she is the maintenance creditor and jurisdiction therefore lies with the court of her habitual residence. She made the better point that the Husband had already aired these arguments in Luxembourg, such that further proceedings were vexatious, oppressive, harassing and intimidating. I have to say that I consider her application to be equally misconceived. The Maintenance Regulation no longer applied. It has been replaced by Article 18 of the Hague Convention 2007, which provides:-“(1) Where a decision is made in a Contracting State where the creditor is habitually resident, proceedings to modify the decision or to make a new decision cannot be brought by the debtor in any other Contracting State as long as the creditor remains habitually resident in the State where the decision was made.”19. The Borras-Degeling Explanatory Report states, at paragraph 415:-“…It operates by prohibiting the debtor from seizing another jurisdiction to modify a decision or obtain a new decision where the original decision has been made in a Contract State in which the creditor is habitually resident”.20.I am absolutely clear that Article 18 does not prevent the Husband’s application. The decision that the Husband wishes to modify is not the Luxembourg decision. It is the decision of Gibbons DJ in this jurisdiction. Using the expression in the Borras-Degeling Explanatory Report, the court of origin is England and Wales not Luxembourg. No attempt is therefore being made to modify the decision in another Contracting State as the decision that he seeks to modify is from this jurisdiction. It follows that I am entitled to vary the order previously made in this jurisdiction if there is good reason to do so.21.The Husband also argued that the Wife submitted to the jurisdiction of this court. Given my view of Article 18, this argument does not need to be resolved but I am quite clear that she did not submit to the jurisdiction after the application was made. She immediately made her opposition apparent and applied to dismiss. She was then ordered, against her submissions, to file a Form E. She complied because she had to. It would have been quite wrong to expect her to appeal that order. A slightly better point was that she did ask for a modest modification to the order, although it seems to me that this was actually to put in place what had previously been ordered, namely payment of the maintenance by standing order. It is, of course, correct that, recently, the Wife has submitted to the jurisdiction, following a significant change of circumstances, but that is another matter.22.Both applications came before Hudd DJ on 1 June 2021. Her order rightly included a recital that the court expected full compliance with the 2017 order pending any variation. She decided to allocate the case to a High Court Judge, given the issues I have outlined above. As I have already indicated, she did direct that both parties file Forms E. 23.The Husband’s Form E is dated 18 May 2021. At the time, he remained employed in the UAE earning almost the same as in 2017. His Form E gives his net income as £448,348 per annum, of which £421,708 was from his UAE employment. I will deal with his capital position later in this judgment. He added that he has very limited pension provision and is unable to make savings, although the latter was clearly wrong both because his resources have increased significantly since the 2017 order and because he had a very large income as well as the availability of very generous allowances, even making allowance for the maintenance he was paying. He puts forward future income needs of £444,703 per annum, including pension contributions of £188,483 and housing costs of over £119,000 per annum. It would be a real move forward if parties did not exaggerate so massively in completing these documents. Such figures just give rise to numerous questions that are, in one sense, entirely justified but, in another, completely irrelevant. By far and away the most significant statement in the Form E was that he said that he intended to relocate to the United Kingdom and seek alternative employment, whereupon his income would reduce to £150,000 per annum. The Wife is, of course, extremely critical of this but she accepts that the possibility of him not remaining in the UAE was discussed at the time of the 2017 order. In any event, a court or ex-spouse cannot require the other spouse to continue working in a particular employment overseas indefinitely. The husband would have been quite within his rights to have given notice to his employer in the UAE and return voluntarily to this country. In fact, I am satisfied that is not what has happened.24.The Wife’s Form E is dated 22 June 2021. She resides in Luxembourg. At the time, she was still on a temporary contract but she accepted that she would get a full contract in July 2021, initially on a two year trial basis. She does say that the Husband has fallen out with the children. She sets out her capital assets but I will deal with that later in this judgment. In terms of income, she deposes to total income of £159,930 net per annum but that included the maintenance. Her income needs were said to be £11,476 per month for herself and £8,100 per month for the children, which comes to £234,912 per annum. Although lower than the Husband’s list, it is clear that this schedule was equally unaffordable and had not been spent, given the increase in her assets since 2017. It is fortunate for both parties that they have, at least, increased their assets considerably since 2017 despite the ruinous litigation. Very regrettably, the Wife completed the “conduct” box in her Form E. This really has to stop in cases like this. There is no conduct in this case that it could possibly be inequitable to disregard. Again, it merely stokes the fires. 25.In his statement dated 6 July 2021 in response to the Wife’s strike out application, the Husband said that he was seeking to capitalise/terminate the Wife’s maintenance. He repeats the complaint that the Wife was not full and frank about her earning capacity in the 2017 negotiations. I have already indicated that I have some sympathy for him in that regard, although the Wife is adamant that she did disclose her wish to move to Luxembourg. The Wife’s reply is dated 20 July 2021. She said that the costs of these proceedings had outweighed her inheritance, which is a great shame. She adds that the Luxembourg court had the power to vary but did not. 26.The matter came before me for directions on 23 July 2021. The Wife wanted me to set the matter down for an interim hearing on jurisdiction. I am very glad that I refused to do so. I am clear that, if I had, I would have dismissed her application to strike out and made her pay the costs. As it was, I set this final hearing down before myself to deal with all matters on a rolled up basis. I did say that compliance by the Wife with my directions would not amount to the Wife submitting to the jurisdiction but I accept that this was going forward only. I directed an FDR, which took place before Holman J on 29 November 2021 but it was, sadly, unsuccessful. 27.On 30 September 2021, the Husband was told that his appointment in the UAE was to be terminated with three months’ notice, although he could resign if he felt that would be more advantageous to him in his future job search. He decided, in consequence, to resign and his employment terminated on 31 December 2021. He set about trying to find alternative employment in this country. I will make my findings of fact later in this judgment but I can say that I am satisfied that the Husband did not engineer the termination of his employment, although he would have been within his rights to do so. 28.I had directed Skeleton Arguments as to the jurisdiction issues. I can deal with them very briefly, given that I have already decided the main issues above, given that the answer was so clear. The Wife did say in her Skeleton, drafted expertly on her behalf by Mr Peter Duckworth on 1 November 2021, that it was not a needs based order. It was based on entitlement and was self-regulating. It was to remain constant even if the Wife earned good money. I agree all these points although they do not stop a variation for good reason. The document then made the argument that Luxembourg has exclusive jurisdiction which I have rejected and the better argument that, when instituted, the application was just a re-run of the Luxembourg case. 29.The Husband’s Skeleton, drafted on his behalf by Ms Jones, is dated 15 November 2021. Again, it deals with jurisdiction and the “submission to the jurisdiction” argument that I have already determined. The Wife had claimed res judicata following the Luxembourg decision but I do not think res judicata is relevant in applications to vary periodical payments. Of course, there almost always has to be a relevant change of circumstances to justify variation and, absent such a change, an application will almost inevitably fail but I do not view this as a result of “res judicata”. The document goes on to make the fair point that there was no consideration in Luxembourg of capitalisation. Finally, it says that the order offends the principal in cases such as