Neutral Citation Number: [2014] EWHC 703 (Fam)
Case No.FD13DO5551
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Date: Monday, 3rd March 2014
Before:

MR. JUSTICE MOSTYN
(In Private)
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B E T W E E N :

	CC	Applicant

-  and  -

	NC	Respondent
	
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MR. T. SCOTT QC and MS. V. DOMENGE (instructed by Mills & Reeve LLP) appeared on behalf of the Applicant.

MR. N. DYER QC and  MR. S. WEBSTER (instructed by Sears Tooth) appeared on behalf of the Respondent.
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J U D G M E N T
The Judge hereby gives leave for this judgment to be reported in this anonymised form. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location.

MR. JUSTICE MOSTYN:  

1	This is an application for maintenance pending suit made by the petitioner, CC, against the respondent, NC.  I will refer to the parties in this judgment as "husband" and "wife".  The wife is aged 70.  The husband is aged 68.  The parties were married as long ago as 1970.  They have two children, born in 1973 and 1974: both are married; the elder has three children, the younger two children.

2	In 1976, the parties moved to live in this country and purchased their first home, in London.  The husband was a successful businessman and, in 1986, the parties were able to buy a very attractive country home in England.  A couple of years earlier, the wife had inherited a chalet in Austria, her homeland, from her parents, and she still retains it, although it is fair to say it is not a particularly big property, being about 120 square metres in dimension.

3	The husband's success as a businessman went from strength to strength, so much so that he made the decision to engage in the traditional form of asset protection, namely use of  offshore trusts, and the first trusts were established in March 1992; a further trust was established in August 1992; and a yet further trust in July 1999.  The husband is a beneficiary of those trusts.  They were formally settled by his mother, although nobody realistically suggests that his mother actually contributed any money to the trusts in question and, the property of the trusts would be regarded, I would expect, although I am certainly not deciding that now, to be matrimonial property, were a claim for a financial remedy to be adjudicated here.

4	In 1996, the parties purchased a further property in London (“TA”); it was purchased in the wife's sole name, although there is a charge in favour of a company owned by one of the trusts.  The sums due under that charge have compounded over the years so that there is, apparently, £9 million owed under it.  Of course, this is just Peter owing money to Paul, where Peter and Paul are birds occupying the same nest.

5	TA now is worth £15 million and its value indicates that it is a very substantial property.  The photographs and particulars in the bundles describe it as an "ambassadorial residence".  It has two self-contained flat, one of which is occupied by a housekeeper, and another of which is occupied pro‑tem by the husband's nephew; I am told, however, he will be leaving shortly.

6	In 2002, the parties decided to sell their English country home; I think that was principally at the behest of the wife, who, although she found it very amenable, disliked the weather and she was keen that, in their autumn years, they should be able to live, if not principally, then for the summer months, in the south of France.  I expect the husband was a little disappointed by this because he had obviously by then become completely anglicised.  His passion seems to have been shooting; if it was not his principal passion, it was certainly his second passion.  His principal passion might be said to have been the collection of fine wine.  At all events, following the purchase of the property in the south of France, the parties made it pretty clear to the authorities here that they were relocating to France.  

7	At that time, in March 2002, the husband signed a form saying that he was ceasing to be resident in the UK for tax purposes; in fact in that form, he said he was going to leave for the Lebanon.  In the following year, the wife wrote to Camden Council in relation to council tax, stating that her sole and main residence was in Austria.  At all events, the husband's case as expressed in Mr. Dyer's note is that, from that point onwards, 2002/2003, a property near Cannes became the parties' principal home.  The wife's case is that this was, to use Mr. Scott's memorable phrase, "complete nonsense" and that he remained firmly based in London.  The truth of the parties' competing contentions will be investigated in detail and be made the subject of definitive findings at a hearing which has been fixed to take place in December of this year.

8	After over 40 years of marriage, relations between the parties in 2011 soured and, in that year, according to the wife, the husband asked for a separation.  It is tolerably clear that the wife, from that point, onwards, began to spend her time predominantly in Austria.

9	As against that, so far as the husband is concerned, it was in July 2012 that a shotgun certificate was issued to him, in which he had declared that he was resident at TA.  At about the same time, he completed a Freedom Pass application, signifying that he was resident at TA.

10	In October 2012, the wife had been given a fund of money by the husband and, wishing to diversify the investment of that money, purchased a two‑bedroomed flat, 120 square metres, on a lake in Austria about 20 miles from her chalet.  She spent, including refurbishment, over €600,000 on that.  Although she says that it was for an investment, she uses that for occasional holidays, and the photographs show it to be a pleasant, if quite small, dwelling.

11	In June 2013, relations between the parties irretrievably broke down, when the parties had a most animated argument in the south of France, in circumstances where the husband had put to death the wife's pet ram.  I say no more about that, apart to say that the circumstances leading up to that lead one to consider that it is not perhaps altogether surprising that the relationship irretrievably collapsed at that point.

12	On 8th November 2013, the wife presented a divorce petition to this court, in which she claimed almost every jurisdictional basis available under Article 3 of the Brussels 2 regulation no. 2201/2003 of 27th November 2003.  She claimed the parties' last habitual residence was in England and Wales and that one or other of them still resides here.  She claimed that the husband is habitually resident here.  She claimed that, in the 12-month period prior to the petition, she was habitually resident here.  She claimed that she is habitually resident here and has resided here for six months and is domiciled here. And she also claimed that both parties are domiciled here.  

13.	The husband countered this by issuing a divorce petition in Austria on 12th November 2013.  It is perfectly obvious what the motives of the parties were in issuing proceedings respectively in England and Austria.  The wife obviously believes that she will be afforded more generous treatment by this court than in the court of her homeland.  The husband believes that he will be afforded more conservative and, therefore to him, more generous treatment in the court of his wife's homeland rather than in the court of the country where he has lived for so many years and certainly has embraced culturally.

14	However, the Brussels 2 regulation, in my view, certainly permits forum shopping.  It could be argued that it encourages forum shopping, inasmuch as it does not contain, in relation to a suit for divorce, a provision to transfer the suit to a court better placed to hear the case, unlike proceedings in relation to children, where such a provision exists under Article 15; nor has it been amended to provide for a transfer on the basis of forum conveniens, as the Brussels 1 regulation in civil matters has been prospectively amended.  So, as things stand, it is perfectly within the rights of a prospective applicant to issue, provided they satisfy a jurisdictional criterion, in any country in the Union, on the basis that the court of that country will be more favourable to them when it comes to the allocation of the money.

15	The wife has since applied for maintenance pending suit and that is before me.  She is not applying for a Legal Services payment order, as she has about £500,000 remaining from the fund of money which I have mentioned, which she has earmarked to meet legal costs.  The legal costs, one can reasonably anticipate, will be very significant, as there is going to be a highly expensive piece of litigation about where the parties should litigate, which will no doubt, when that has been decided, if it is decided in the wife's favour, lead to very expensive financial remedy proceedings.

16	The position taken by Mr. Dyer, on behalf of the husband, is that, in circumstances where, it is argued by him, that the wife's jurisdictional claim is weak - indeed, he would go further and say "very weak" - I should be cautious in what I award by way of maintenance pending suit; I should proceed very conservatively, in circumstances where, so Mr. Dyer would have me accept, it is likely that the claim to jurisdiction will fail and the husband will find himself having paid out large sums of money which he will not be able to recover.  He relies on a recent decision of mine, called MET v. HAT [2013] EWHC 4247, where I said, at para.20: 

"It is certainly true that the court has power to award maintenance pending suit, even where the jurisdiction of the court to pronounce a decree has been challenged."

	At para.21, I said: 

	"... I take the view ... that, where the jurisdiction to pronounce a decree is in dispute, the court should act very cautiously indeed.  The court is entitled, in my view, to have regard to the strength or otherwise of the claim that the court has jurisdiction, and the more uncertain the court is on a provisional basis that the court does have jurisdiction, the more cautious it should be."

	Mr. Dyer says that this case is on all fours with that case.

17	In that case (MET v. HAT), there had been a non-proceedings talaq pronounced by the husband in his homeland.  The evidence then before the court, given by the single joint expert, was that the Islamic divorce was a valid divorce in the husband's homeland, which was entitled to be recognised here.  In those circumstances, there obviously would have been no scope to have awarded maintenance pending suit and there would have been no scope, it being a non‑proceedings divorce, for a grant of leave to apply for financial provision, following an overseas divorce, under Part 3 of the Matrimonial and Family Proceedings Act 1984, a position which, as I observed in that case, is very difficult to understand indeed.

18	On the unchallenged single-joint-expert evidence before the court in that case, the wife was heading towards a dismissal of her divorce proceedings and, in those circumstances, faced with evidence of such strength, I took the view that I should proceed very cautiously and, while I was prepared to award generous child maintenance, I was not prepared to make an award for maintenance pending suit or a Legal Service payment order.  Mr. Dyer says that, in this case, the wife's claim to establish jurisdiction is equally weak.

19	Inasmuch as she relies on her own habitual residence, he suggests - and this is not disputed by Mr. Scott - that, in the 12-month period preceding the date of her petition, she had been in this jurisdiction for precisely 26 days.  Moreover, she had, in that period, bought property in Austria, declared it to be the place of her principal residence and was, in reality, living there predominantly.  In that regard, I agree with Mr. Dyer that he does demonstrate a strong case.  Inasmuch as the wife relies on her habitual residence here, I am provisionally satisfied that it is a weak case indeed and, on the present state of the material before me, is more likely than not to fail.

20	However, the wife does not simply rely on her own habitual residence, as I have explained.  She pleads that, in the period immediately before the date of her petition (8th November 2013), the husband was habitually resident here.  She also claims that this was the territory where the spouses were last habitually residence, insofar as one of them still resides here.

21	So far as the husband's position is concerned, in the 12-month period before the date of the wife's petition, he had spent, excluding transit and medical days, 83 days in the UK.  In addition to that, he had spent 28 transit and medical days, so that he spent over 110 days in this jurisdiction; that was far more than he spent in any other jurisdiction.  The next competitor is the Lebanon, with 79 days, followed by France, with 74 days.  So, although the exercise is not one of counting days alone, the fact is that, in the 12-month period, the husband spent more time in this jurisdiction than in any other individual jurisdiction.  But, beyond that, it does seem - and I only speak again provisionally - that the husband continues to maintain a significant infrastructural operation here, and that, so much so, I tend to agree - again, as I say, I speak only provisionally – it appears that the husband's centre of interests was at 8th November 2013, certainly arguably, could be regarded as being in this country.

22	I take the view that, in relation to the husband's residence, the wife here has an arguable case, possibly even a strongly arguable case, and, in such circumstances, I do not think it would be proper for me to discount her maintenance pending suit claim or otherwise to act conservatively by reference to that factor.

23	I, therefore, turn to the budget which she has advanced, which is in the bundle before me.  The most significant item in her budget was her claim to be able to rent a house in London.  This would cost £170,000 a year when one adds in the core rental price, the utilities and the cost of a housekeeper.  It might be thought somewhat surprising that the wife should wish to rent a house in London, when she has access to the ambassadorial residence at TA.  She says that she is not prepared to go there for fear that she might bump into her husband, even though, in truth, neither of them goes there very often at all.  

24	In my judgment, this is a wholly untenable position for her to take.  The husband has offered - and this will be recorded as an undertaking - that, when he is in the property, he will not use the principal bedroom and that will become the domain of the wife alone.  But, beyond that, I would expect these two people, these two mature people, to be able to signify by email to each other when they expect to be in the property in London, so that they can adjust their plans to ensure that each is there when the other is not.  So, from the wife's budget, I disallow £170,000 referable to the claim to rent the house in London.

25	I asked Mr. Dyer, if there were to be no discount or application of conservatism by reference to his claim that this was a jurisdictionally weak case, what other aspects of the wife’s budget he would claim have been overstated, and his response was that, in relation to clothes and footwear, the claim for £24,000 was too high; he said that the claim for £18,000 a year for restaurants was too high; and he said that the claim for £70,000 a year for holidays and European flights was too high.  He says that the claim for holidays and European flights is much too high because the wife should take advantage of the lovely home in the south of France and should have her principal summer holiday there, in circumstances where of course her principal winter holiday would be in Austria, at the chalet.

26	I accept that the £70,000 for holidays and European flights has been overstated, to some extent, but I do not accept Mr. Dyer's central thesis, which is that this should almost entirely be disallowed.  I do not think it is reasonable, in view of the unhappy memories which the villa in the south of France must hold for the wife, for her to have to take, predominantly, her holidays there.  I do think it is reasonable for some of her holidays to be taken at her recently acquired apartment in Austria.

27	Looking at her budget again, I make the observation that health insurance will be disallowed because the husband will pay that directly.  The husband has also offered to ensure that the car which the parties jointly own will be paid for by him.  The wife jibbed at this, saying she should be able to have her own car and does not want to have to share a car with her husband.  I regard that as an untenable stance, especially having regard to the extremely limited amount of time which the parties spend in London at present.

28	Taking the budget of £393,000, I remove £170,000 being the claim for the London rental, its outgoings and housekeeper; I remove £7,000 being health insurance which the husband will pay directly; and I remove £6,000 which is the leasing car claim, in circumstances where the husband will pay for the running of the jointly-owned car here.  I believe that £12,000 a year can be saved from the claim for clothes and footwear; I believe that £8,000 a year can be saved from the claim for restaurants; and that, from the £70,000 for holidays and City flights, £20,000 can be saved: giving a total savings of £223,000, which reduces the budget to £170,000.
29	Can the husband afford to pay this?  Mr. Dyer did not seek to argue to the contrary.  Plainly, the husband is a very rich man in terms of the resources which are available to him, and I am amply satisfied that he can pay an annual amount of £170,000, which I convert to £14,166 per month, which I direct shall be paid from 1st February 2014, in advance. That will give rise to some arrears for that month, which I would expect the husband to discharge promptly.

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