A good judge will recognise your true intentions

Divorce|November 12th 2015

A wry smile crept across my face when I read the judgment of Mrs Justice Parker in Baldwin v Baldwin last week (the judgment was actually handed down in March 2014, but was only published last week). There was nothing remotely amusing about the case, but it did demonstrate how difficult it can be for a party intent upon doing everything in their power to impede and defeat the other party’s claim to hide their true intentions from the court. Or, to put it the other way, it showed how a good judge is likely to be alive to those intentions.

As I have commented here on more than one occasion previously (most recently in this post), family law cases these days can often have an international dimension. So it was in this case, with no fewer than four countries in three different continents being involved. The case concerned an English husband and an Ethiopian wife who were married in Dubai. Their last common residence was Dubai, where their son was born in February 2013. After they separated in June 2013 the husband took up employment in Indonesia and the wife returned to Ethiopia with the child, although it is her intention to reside in Dubai, once she obtains the necessary visa.

Briefly, the husband issued divorce proceedings in England, relying upon his English domicile to give the court jurisdiction. He was not paying any maintenance for the wife or his son, so the wife applied to the English court for a maintenance order. The husband claimed that the English court did not have jurisdiction to entertain the wife’s application, and the case was transferred to the High Court, for Mrs Justice Parker to decide the matter.

Without going into the technical complexities of the jurisdiction issue, Mrs Justice Parker decided that the English court did have jurisdiction. She therefore made an order for the husband to pay maintenance pending suit at the rate of £2,000 per month. She also made a legal services order for the husband to pay £4,000 per month (to enable the wife to fund further court proceedings), and ordered the husband to pay the wife’s costs.

But Mrs Justice Parker also made another finding: that the husband was trying to starve the wife out of her litigation funding. Early in her judgment she said the following:

“I have come to the view that this husband will run any argument, and employ any tactic, to avoid his responsibilities to his wife and child, and that he has deliberately sought to engage in these proceedings so as to starve her of litigation funds.”

She did not specify precisely what arguments/tactics she was referring to, but the following are apparent from the judgment:

  • Firstly, the husband had not paid any maintenance (even for the child, who he accepted he had a responsibility to maintain), thus starving the wife of funds. (He also cancelled the lease on the matrimonial home in Dubai, thereby making the wife and child homeless.)
  • Secondly, the husband entered into an agreement with the wife’s solicitors to pay maintenance, but then resiled from it [abandoned the agreement, claiming that he had only agreed under duress.
  • Thirdly, the husband raised the jurisdiction point (despite the fact that he had issued proceedings in this country), knowing that it would be very difficult for the wife to seek maintenance in Dubai, Ethiopia or Indonesia.
  • Finally, and this it seems was the last straw for Mrs Justice Parker, on the second morning of the hearing the husband made an application for Mrs Justice Parker to abandon the proceedings, on the basis that she had considered without prejudice material which should not have been before her, and re-list the case for hearing in front of another judge. Mrs Justice Parker rejected the application.

Given her finding, it was no surprise that Mrs Justice Parker made the orders against the husband that she did. The moral of the case is clear: if you set out in litigation with the sole intention of impeding or defeating the other party’s claim, rather than engaging reasonably in the process, then don’t expect to get away with such behaviour.

The full report of Baldwin v Baldwin can be read here.

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  2. Paul Massey says:

    Interesting, John, but your conclusion is well, premature, at the least.

    Recalcitrant, contumacious, disobedient litigants that continually flout court orders and suborn children into doing so get away with this behaviour all the time – although perhaps not with Mrs Justice Parker…

    In 2015 only 1.2% of all applications to enforce breaches of court orders, were successful. Judges do not back up their own orders, even when the standard need for some punishments is only the civil standard.

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