Anonymized summary of the Court of Appeal judgment concerning leave under Part III of the Matrimonial and Family Proceedings Act 1984
Factual and Procedural Background
This judgment is a further appeal arising from an order of Judge Cohen dated 8 November 2019 in proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 ('the 1984 Act'). By that order Judge Cohen (a) set aside an earlier ex parte grant of leave made on 25 January 2019 to the Appellant to bring a Part III claim, and (b) dismissed the Appellant's renewed application for leave to pursue financial relief under Part III.
The parties were long-married nationals of Country B who lived in Country B during the marriage. They divorced in Country B in 2014 after about thirty years of marriage and have three adult children. Substantial wealth accumulated during the marriage was, for the most part, held by trusts and companies of which the Appellee acknowledged being the ultimate beneficial owner. The Country B court divided the legally owned marital property and made an award to the Appellant which, on the Appellant's case and as described in the reports of this litigation, represented only a small fraction of what she would have obtained if assets of which the Appellee was beneficial owner had been treated as marital property.
After the divorce the Appellant pursued proceedings in Country B, Country D and Country C, and applied for leave to bring a Part III claim in Jurisdiction A. The Appellant had obtained an investor visa for Jurisdiction A in mid-2014 and had purchased property in The City later in 2014; it was not disputed that she had been habitually resident in Jurisdiction A since at least January 2016.
Procedural history (summary):
- 25 January 2019: Judge Cohen granted the Appellant leave ex parte to pursue a Part III claim.
- 21 February 2019: the Appellee applied to set aside that ex parte grant.
- October/November 2019: on a rehearing with notice, Judge Cohen set aside the earlier grant of leave and dismissed the Appellant's renewed application for leave (the order under appeal).
- January 2021: the Court of Appeal (judges anonymized below) allowed the Appellant's appeal limited to reinstating the original grant of leave; that court did not decide the substantive merits of the Part III application.
- The Appellee successfully appealed to the Supreme Court, which issued judgments in 2024 and remitted the Appellant's appeal against the dismissal of the renewed application for leave back to the Court of Appeal by order of 31 January 2024.
- The present appeal therefore focuses on whether Judge Cohen was wrong to refuse the Appellant's renewed application for leave under Part III.
The Appellant sought to adduce further witness evidence on appeal; the court read that material de bene esse but did not admit it unless the appeal were to be allowed and further consideration of disposal were necessary. It was not necessary to admit the fresh evidence to decide the appeal.
Legal Issues Presented
- Whether Judge Cohen was wrong to refuse the Appellant's renewed application for leave under Part III of the 1984 Act — specifically whether the Appellant had shown the "substantial ground" (section 13) required for leave (the threshold question) and how that threshold should be understood following the Supreme Court's clarification.
- Whether Judge Cohen misinterpreted and misapplied section 16(3) of the 1984 Act (as it stood in 2019) in relation to the Maintenance Regulation and therefore wrongly dismissed the Appellant's maintenance/needs claim on forum or connection grounds (Ground 12 in the appeal).
- Whether the finding by Judge Cohen that he had been materially misled at the ex parte hearing improperly influenced and "polluted" his reconsideration of the leave application and therefore whether he was wrong not to re-grant leave (Ground 13 in the appeal).
Arguments of the Parties
Appellant's Arguments
- Attorney Howard argued that Judge Cohen's earlier finding that he had been materially misled at the ex parte hearing had irreparably prejudiced his subsequent consideration of the renewed leave application, producing adverse findings unsupported by oral or expert evidence.
- It was submitted that the term "divorce tourist", used by Judge Cohen, was unfair and factually wrong given the Appellant's investor visa and property ownership in Jurisdiction A and her habitual residence there since January 2016.
- Attorney Howard relied on the Supreme Court's clarification that the threshold for leave under section 13 is akin to the "real prospect of success" test (not as demanding as a "good arguable case") and argued that the Appellant easily met that threshold on the evidence before Judge Cohen in 2019.
- The Appellant emphasised that she had sought to exhaust remedies in Country B and elsewhere and that the alleged lacuna in Country B law (that beneficial ownership was not accounted for in the Country B matrimonial distribution) required detailed analysis and was a central point supporting her prospects of success.
- Attorney Nagpal submitted that section 16(3) of the 1984 Act should be read to give effect to the Maintenance Regulation so that, where Article 3 jurisdiction under that Regulation is satisfied for maintenance, the court cannot dismiss the maintenance part of an application on forum/connection grounds inconsistent with the Regulation; section 13's merits threshold still had to be met but the maintenance claim should not have been dismissed for lack of connection.
Appellee's Arguments
- Attorney Faulks contended that the "real prospect of success" formulation adopted by the Supreme Court was not less protective of the court's gatekeeper function and that Judge Cohen's de novo decision should stand; any remarks about being misled were irrelevant where the judge's subsequent reasoning did not rely upon them to dismiss the application.
- The Appellee submitted that the Appellant's connection with Jurisdiction A was not strong, that no lacuna in Country B law had been made out and that Part III should not be used to "top up" an overseas award; in short, section 16 factors properly weighed against permitting the claim to proceed.
- The Appellee (initially in a Respondent's Notice) suggested at one stage that the Maintenance Regulation might not be engaged if the claim were a sharing claim, but that point was not pursued on this appeal.
- The Appellee also argued that descriptions such as "divorce tourist" were characterisations of the judge's view and did not amount to a determinative factual finding and could be disregarded if the court preferred.
Table of Precedents Cited
Case names and personal names have been anonymized; citations are retained as cited in the judgment. Entries record the rule or principle for which each precedent was cited in the judgment and how the present court used or referred to that authority.
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Precedent A — [2010] UKSC 13 |
Established that in s.13 the word "substantial" is to be taken to mean "solid"; set out guidance on preventing wholly unmeritorious Part III claims. The paragraph quoted (para [33]) contained a second half about the approach to setting aside ex parte leave. |
The court treated the "substantial = solid" formulation as primary guidance but recorded that the Supreme Court in the present litigation clarified aspects of the threshold and corrected the second half of para [33] (about setting-aside procedure). The court followed the refined approach from the later Supreme Court clarification when assessing the threshold. |
| Precedent B — [2024] EWCA Civ 1109 |
Cited in relation to the discussion of the appropriate merits threshold (see discussion of a "real prospect of success"). |
Noted by the court as an authority referred to in the judgment when discussing the "real prospect" formulation; the judgment refers the reader to that authority for related discussion but contains no extended analysis of it. |
| Precedent C — [2024] EWFC 96 |
Applied for the proposition that the merits-based elements (such as "substantial ground", "connection", and other s.16 factors) are assessed as at the date of the hearing of the leave application, not as at the date of the application. |
The court relied on this point to criticise Judge Cohen's apparent failure to assess the Appellant's connection prospectively and at the date of the hearing. |
| Precedent D — [2000] 1 WLR 210 |
Referenced in the context of earlier commentary about the approach to setting aside ex parte orders and how that had been treated in prior authority. |
Used to explain that aspects of earlier commentary were misunderstood and that subsequent Supreme Court clarification corrected that misunderstanding; the court relied on that corrective analysis. |
| Precedent E — [2002] EWCA Civ 1155 |
Appears in discussion of when a power to set aside permission (or leave) has been exercised — traditionally only where decisive authority was overlooked or the court misled. |
The court recorded that this line of thinking was part of earlier authority relied upon in para [33] of Precedent A but that the Supreme Court's later treatment modified its application to Part III proceedings. |
| Precedent F — [2007] EWCA Civ 759 |
Like Precedent E, considered in relation to the exceptional circumstances in which leave or permission is set aside (e.g. where the court was misled). |
The court noted this authority as part of the backdrop to the earlier approach to setting aside but observed that the Supreme Court's later analysis has displaced parts of that approach in the Part III context. |
| Precedent G — [2017] EWCA Civ 1429 |
Summarised practical points from Precedent A including: (i) Part III cannot be used to "top up" a foreign award merely to equal an English award; (ii) "hardship" and "injustice" are not preconditions but may be relevant; (iii) the objective of providing for reasonable needs where possible. |
The court cited these points as useful distillations of Precedent A and as relevant practical considerations when applying s.16 factors and assessing whether a claim should proceed. |
| Precedent H — [2023] UKSC 22 |
Authority referred to for the concept of a "fully entitled" spouse in financial remedy litigation (i.e. a spouse entitled to the full range of financial relief without discount). |
The court cited this precedent to explain the Judge's earlier description of the Appellant as a "fully entitled" spouse and to situate entitlement within the Part III context. |
| Precedent I — [2016] EWHC 1684 (Fam) |
Referred to by counsel as a high-value matrimonial finance case used for comparison on quantum and complexity. |
The court accepted it as a comparative example but noted that the present case involved sums exceeding those in that decision; the point was used only for context. |
| Precedent J — [2020] UKSC 30 |
Discussed in relation to the legislative and regulatory measures (CJJ(M)R 2011) implementing the Maintenance Regulation and commentary on their quality. |
Used to support the analysis of how the Maintenance Regulation interacted with domestic statutory provisions and how section 16(3) should be construed to give effect to the Regulation. |
| Precedent K — [2001] UKHL 16 |
Quoted for the explanation of the reverse summary judgment approach and the circumstances in which summary disposal is appropriate; introduced the "real prospect of success" analogy. |
The court relied on the passage to support the Supreme Court's analogy that the s.13 threshold is akin to deciding whether a claim has a real prospect of success and to explain why some complex cases require full trial treatment rather than summary dismissal. |
| Precedent L — [1969] 1 AC 33 |
Referred to in the context of recognition of foreign divorce where there is a "real and substantial connection" — a distinct rule from Part III's "connection" assessment. |
The court used the reference to show that the adjective "substantial" properly qualifies "ground" in s.13 but should not routinely be read into the unqualified term "connection" in s.16(2). |
| Precedent M — C‑220/95 ([1997] QB 759) |
A European decision used to support that "maintenance" has a wide autonomous meaning and can include lump sums and transfers of property. |
Relied upon to demonstrate that an applicant seeking a lump sum or property transfer may nevertheless be a maintenance creditor within the Maintenance Regulation. |
| Precedent N — Case C‑281/02 |
Used for the proposition that EU maintenance jurisdiction rules are exhaustive and that a court designated by the Regulation may not decline jurisdiction on grounds of forum non conveniens. |
Applied to support the conclusion that, where the Maintenance Regulation applied, section 16(3) must prevent dismissal of the maintenance element in a way inconsistent with the Regulation. |
| Precedent O — Case C‑468/18 |
Similar to Precedent N: cited for the same proposition about the exhaustiveness of the Maintenance Regulation and the inability of national courts to decline jurisdiction on forum non conveniens grounds when the Regulation applies. |
Used with Precedent N to explain why section 16(3) must be read so as to give effect to the Regulation's mandatory rules on jurisdiction. |
| Precedent P — [2021] EWFC 32 |
Illustrated that the Maintenance Regulation can apply to first-time applicants and thus that an applicant in that position can be a maintenance creditor. |
Used to support the conclusion that the Appellant in this case was a maintenance creditor and that the Maintenance Regulation therefore applied to her needs claim. |
| This Case — First-instance [2019] (High Court, Family Division) |
The initial ex parte order granting leave and the later on‑notice decision setting aside that leave and dismissing the renewed application. |
The Court of Appeal reviewed the factual findings and procedural approach of the first-instance judge and found significant shortcomings in the handling of evidence and the application of statutory tests. |
| This Case — Court of Appeal [2021] |
The earlier appellate decision that restored the ex parte grant of leave but limited its scope and did not decide the substantive merits. |
The present court took that decision into account but proceeded to consider the merits of the renewed leave decision as remitted by the Supreme Court. |
| This Case — Supreme Court [2024] |
The Supreme Court clarified aspects of the leave threshold under s.13 and corrected parts of the prior approach to setting-aside ex parte leave. |
The Court of Appeal applied the Supreme Court's clarifications (described throughout the judgment) when assessing the s.13 threshold and the proper approach to s.16(3) in light of the Maintenance Regulation. |
Court's Reasoning and Analysis
The court began by setting out the statutory scheme as it applied in November 2019 under Part III of the 1984 Act and by identifying the two principal limbs for a Part III leave application:
- a jurisdictional requirements limb (derived from section 15 and, at the time, section 15(1A) insofar as the Maintenance Regulation applied), and
- a merits‑based threshold limb (section 13) requiring that there be "substantial ground" for the making of the application.
The court recapitulated the Supreme Court's clarification of the threshold in this litigation: the word "substantial" in section 13 means "solid" (as in Precedent A) but the test is usefully illuminated by analogy with other contexts where a court decides whether a claim should be allowed to proceed to full hearing — in particular, the "real prospect of success" or "reverse summary judgment" concept (drawing on Precedent K and the Supreme Court's treatment in This Case — Supreme Court). The court emphasised that the threshold is higher than merely showing the claim is not totally without merit, but is not as demanding as demonstrating a good arguable case for the purposes of jurisdictional gateways.
The court then turned to a detailed assessment of Judge Cohen's reasoning and of the Appellant's prospects on the facts that were before the judge in November 2019. The principal analytic points were as follows (expressed in the court's terms and based on the material in the judgment):
1. Assessment of connection (s.16(2)(a))
The court found that Judge Cohen had overstated the weakness of the Appellant's connection with Jurisdiction A. Although the judge had recorded — and it was not disputed — that the Appellant had been habitually resident in Jurisdiction A since at least January 2016, he had described her connection as "recent and modest" and had said that the parties' connection with Country B was "infinitely greater".
The Court of Appeal identified several problems with that approach: (a) there had been no evidential investigation of the Appellant's pre‑2016 movements because the judge had not asked for it (the judge had expressly said he had not required diarisation); (b) the judge failed to assess connection prospectively as at the date of the hearing (and forward to the likely position at trial), contrary to the approach endorsed by the Supreme Court and other authority; and (c) the judge ignored or underweighted unchallenged evidence that the Appellant had an investor visa and property in The City and that she had very largely severed ties with Country B.
2. Findings about the Appellant's motivation and the "divorce tourist" characterisation
The court criticised Judge Cohen for drawing an adverse inference about the Appellant's motivation to come to Jurisdiction A from the fact that she had consulted English matrimonial lawyers in 2014 and had not disclosed the content of that legal advice. The Court of Appeal reiterated (following the earlier Court of Appeal judgment) that no adverse inference can be drawn from a party's assertion of legal privilege and that disputed evidence as to motivation requires oral evidence and cross-examination; it is therefore unsuitable for resolution at a summary leave hearing. The court held that the "divorce tourist" label was unfair and unsupported by the evidence before the judge.
3. Treatment of the Country B proceedings and the alleged lacuna in Country B law
The court found that Judge Cohen accepted, without adequate expert analysis, that the Country B courts had "consistently and properly applied Country B law" and therefore implicitly rejected the Appellant's case that Country B law contained a lacuna excluding assets beneficially but not legally owned. The Court of Appeal noted that the lacuna argument required detailed analysis and was a matter on which the judge should not have made adverse factual findings without expert materials and appropriate evidential testing.
4. Misapplication of the Maintenance Regulation and section 16(3)
The court set out the statutory interaction between section 15(1A) (as then enacted), Article 3 of the Maintenance Regulation and section 16(3) of the 1984 Act. It held that where the Maintenance Regulation applied to the maintenance (needs) element of a Part III claim (as it did here because the Appellant was habitually resident in Jurisdiction A and thus satisfied Article 3(b)), the court could not dismiss the maintenance part of the claim on forum/connection grounds if doing so would be inconsistent with the Regulation's mandatory jurisdictional requirements.
The Court of Appeal concluded that Judge Cohen had given a narrow construction to section 16(3) — treating it as forbidding dismissal solely on the absence of connection — and had therefore erred by treating the Appellant's habitual residence as a factor which could be weighed down to defeat her maintenance claim. The court explained that the Maintenance Regulation was designed to protect maintenance creditors by allowing them a choice of jurisdiction and that national courts may not decline jurisdiction on forum non conveniens grounds where the Regulation applies (citing the relevant European authority summarized in the judgment).
5. The impact of the earlier "misled" finding on the judge's re‑determination
The court considered that Judge Cohen's earlier finding that he had been materially misled at the ex parte hearing (and the prominence of that finding in the on‑notice hearing) had unduly "polluted" his subsequent consideration of the renewed application for leave. The Court of Appeal noted that this court previously held that the "misled" finding had been wrongly made and that the Supreme Court's guidance also supported proceeding on the factual basis alleged unless it is clearly without substance. The court concluded that the misled finding had, in practice, led the judge to make adverse findings without the necessary evidential basis.
6. Application of the s.13 threshold
Applying the clarified test (the "real prospect of success" analogy), the court concluded that on the evidence before Judge Cohen in November 2019 the Appellant had demonstrated substantial, solid ground for making a Part III application for some measure of financial relief (even if not a "full‑blown" award of every available monetary remedy). The court relied on several features present on the material: the Appellant's habitual residence in Jurisdiction A (since at least January 2016), investor visa and property ownership in The City, the relative paltriness of the Country B award in relation to the Appellee's wealth, the lacuna argument (which warranted detailed analysis), and the reasonable prospect that further material would emerge through disclosure at substantive hearing.
7. Disposition — no remittal necessary for re‑determination
Because of the extensive procedural history, the passage of time and the quality of the material before Judge Cohen in November 2019, the Court of Appeal considered it neither necessary nor proportionate to remit the Appellant's leave application back to the Family Division for a full re‑determination. Instead, the court concluded that leave should be granted on the basis of the material before the judge and that the Part III application should be remitted to the Family Division for case management and allocation.
Holding and Implications
Core ruling: The Court of Appeal allowed the appeal on the residual grounds and set aside the part of Judge Cohen's order dismissing the Appellant's renewed application for leave under Part III of the Matrimonial and Family Proceedings Act 1984. The Court therefore GRANTED LEAVE to the Appellant to apply under Part III and directed that the application be returned to the Family Division for case management.
Direct consequences for the parties:
- The Appellant is granted leave under section 13 of the 1984 Act to make an application for financial relief under Part III and may proceed to substantive steps in the Family Division consistent with that leave.
- The matter is remitted to the Family Division for a case management hearing and allocation (to be managed by the National Lead Judge for Financial Remedies as appropriate).
Broader legal implications (as discussed in the judgment):
- The judgment restates and applies the Supreme Court's clarification that the section 13 threshold should be understood by analogy with the "real prospect of success" / reverse summary judgment concept: more than merely not being wholly without merit, but not as demanding as the "good arguable case" standard used for jurisdictional gateway determinations.
- The court emphasised that the merits‑based elements in s.13 and the s.16 factors (including "connection") are to be assessed as at the date of the hearing of the leave application with a forward look to what is likely to be shown at trial, not strictly as at the date of the initial application.
- Where, as in the present case, the Maintenance Regulation applied to the maintenance (needs) element of the claim, section 16(3) must be given effect so as to preclude dismissal of the maintenance claim on grounds inconsistent with the Regulation: a national court may not decline to exercise jurisdiction in a manner that defeats the Regulation's mandatory jurisdictional allocation for maintenance creditors.
- The judgment reiterates established points that hardship and injustice can be relevant (but are not preconditions) and that Part III is not a mechanism for routine top‑up of foreign awards — however, these considerations must be weighed on evidence and not decided by unsupported summary findings.
Judgment delivery: the judgment of the Court of Appeal, after detailed analysis of the statutory scheme, the applicable caselaw (including the Supreme Court clarification) and the facts as they stood before Judge Cohen in November 2019, concluded that leave should have been granted and made the orders described above. The judgment was agreed by the other members of the court who heard the appeal.