The cost of ‘initial skirmishes’

Children|Divorce|March 28th 2019

We have all seen cases in which there have been seemingly endless initial skirmishes between the parties, as they jostle for position before the real proceedings begin. Unfortunately, the cost of this skirmishing can often put a huge dent in the assets available to the parties, and sometimes even use them up entirely.

AJ v DM, in which a preliminary point (or two) was recently decided by Mr Justice Cohen, is a case in point.

The facts of the case were as follows. The husband was born in Ireland and the wife in England. Both subsequently became Australian citizens, in addition to their original citizenship. They met in Australia in 2014, and were married there in December 2015. The wife fell pregnant in about January 2016. In March 2016, whilst on a holiday to England, she decided that she wished to see out her pregnancy in England. In June 2016, the husband returned to Dublin, where his family live, making trips over to England to see the wife, and in September he moved to England to resume cohabitation with the wife. The child was born a month later. In January 2017 the husband started a new job in St Lucia, and the wife joined him there in the following March.

The marriage became increasingly unhappy in early 2018. On the 2nd of April the wife and child left St Lucia and came to England, for what was agreed between the parties to be a holiday. However, whilst in England the wife decided that the marriage was over and issued divorce proceedings in England. It was her intention to remain here with the child. She also issued a financial remedies application and an application for a child arrangements order.

The husband responded with an application for the summary return of the child to the jurisdiction of St Lucia. However, before the application was heard the wife, presumably realising that a return order would be made, took the child back to St Lucia, where she then applied for leave to remove the child to England. That application remains outstanding.

Meanwhile, to make matters even more complicated, in June 2018 the husband applied to the family court in Australia for financial relief. That application is also outstanding. In the following month the wife made various applications, including an application to amend her divorce petition to show that the English court had jurisdiction to deal with the proceedings as the parties “were last habitually resident in England and Wales and the petitioner still resides there.” Without going into the legal details, the importance of this was that the wife could not pursue a maintenance claim here if the petition was not amended. (The only ‘asset’ in the marriage was the husband’s income, so all the wife could effectively claim by way of financial remedy was maintenance.)

So, to summarise, there were various proceedings taking place, in three different jurisdictions.

To cut a longer story short, the English proceedings went before Mr Justice Cohen in the High Court. He had to decide whether the wife could amend her petition, whether the financial remedy proceedings issued here by the wife should be stayed, as the husband maintained, and whether both of those matters should be adjourned until the court in St Lucia had determined the wife’s leave to remove application, as the wife wished.

Mr Justice Cohen felt that it would be inappropriate to adjourn, partly because he did not consider that there was a sufficient connection between the outcome of the leave to remove application and the other issues he had to determine.

As to the amendment application, Mr Justice Cohen felt that this was doomed to failure – it was plain on the facts that the parties were not last habitually resident in England and Wales. They were habitually resident last in St Lucia. This effectively decided the husband’s application for the financial remedy proceedings to be stayed, as there was no jurisdictional basis for the making of a maintenance order here.

OK, there is some more to this case, but for the sake of simplicity I have left out other details, and simplified things somewhat. If you want the full story, you can read the full judgment, at the link below.

Mr Justice Cohen did, however, have one other thing to say, and we have seen similar things said by judges on many occasions in the past. He concluded his judgment as follows:

“There is an important final thing that I ought to say. This case has generated an enormous amount of legal costs. The parties cannot begin to afford continued litigation in the way that they have spent on it so far. There is next to no money in the case other than an income which cannot sustain the level of fees. I would urge the parties to sit down and mediate their dispute, hopefully on everything but, if not, at least on the money, because it must be possible for them to be able to reach an agreement.”

In short, enormous costs have been incurred, but nothing substantial has yet been decided. As usual, I hope that the parties heed this advice.

You can read Mr Justice Cohen’s full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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