The case MWH v GSH: As any reader of this blog will know, the law relating to financial settlements on divorce varies from one jurisdiction to another, with the result that some spouses engage in ‘forum shopping’, to ensure that the divorce takes place in the jurisdiction where they believe the law to be most favourable to them.
But what if you believe that your (former) spouse has ‘got away’ with a liability he would have had in this country, just by issuing the divorce elsewhere? Is there anything that you can do about that? Well, possibly.
Financial relief following an overseas divorce
There is a provision in our law allowing a person to apply to the court here for financial relief following an overseas divorce if either of the parties has the requite connection with this country. The provision is contained in Part III of the Matrimonial Family Proceedings Act 1984 and requires the permission of the court to proceed.
And it was that provision that the wife sought to invoke in the recent High Court case MWH v GSH.
The background to the case MWH v GSH can be shortly stated. The parties had a long marriage, spent in England. The marriage ran into difficulties and in April 2017, the husband left the former matrimonial home in Berkshire and set up home with his new partner in Jersey. Within about six weeks of arrival, he commenced divorce proceedings in Jersey. It is the belief of the wife that he did so because Jersey does not have a provision within its family law for the making of a pension sharing order.
The wife instructed solicitors in Jersey and they negotiated a financial settlement with the husband’s solicitors. The agreement, which was embodied into a consent order made by the court in Jersey, provided for the former matrimonial home to be sold and for the net proceeds to be divided as to 55% to the wife and 45% to the husband, on a clean break basis (i.e. no further claims to be made by either party). The wife made it plain to her Jersey solicitors that she was not happy with the deal but, nevertheless, she entered into it.
The divorce was made final in Jersey in April 2019.
On the 12th of April, the wife made an application under Part III of the Matrimonial Family Proceedings Act 1984, and in the following month, Mr Justice Cobb gave the wife permission to apply for a pension sharing order.
A potential problem
Now at this point, the eagle-eyed reader may have spotted a potential problem with the wife’s application: does Jersey qualify as ‘overseas’?
We, therefore, need to look at the definition of ‘overseas’. Unfortunately, it does not read well for the wife. The Act tells us that: “overseas country’ means a country or territory outside the British Islands…”
And Mr Justice Cohen, hearing the case, explained that the term “British Islands” refers collectively to the United Kingdom of Great Britain and Northern Ireland; the bailiwick of Guernsey including Alderney, Guernsey, and Sark; the bailiwick of Jersey; and the Isle of Man.
Accordingly, Jersey is not an ‘overseas country’.
One might think that that was the end of the matter. However, the wife had an ingenious argument, which essentially went as follows. The 1984 Act did not apply to Jersey, as its divorce law was then in most important respects similar to that in England and Wales. However, that changed when pension sharing orders were introduced here in 2000, and Jersey did not follow suit. This, it was argued, created a serious injustice in this case, particularly as the husband’s pension income was apparently some 2.5 times that of the income of the wife. This ‘mischief’ allowed the court to interpret the Act so as to provide the wife with a remedy.
Mr Justice Cohen, however, was having none of it. He pointed out that the fact that the husband’s pension income was much greater than the wife’s income did not necessarily mean that substantial injustice had occurred due to the absence of pension sharing orders under Jersey law. That fact could, for example, have been dealt with by an ‘offsetting’ arrangement, whereby the wife received the lion’s share of other assets – and that could have been the reason for the wife getting more than half of the house.
As to ‘re-interpreting’ the Act, Mr Justice Cohen felt that he was actually being asked to ride roughshod over it, something that he was not prepared to do – any change in the law was up to Parliament.
Accordingly, the wife’s application failed. In addition, she was ordered to pay £11,000 costs to the husband, from her share of the net proceeds of the sale of the former matrimonial home. Ouch.
You can read the full judgment on the case MWH v GSH here
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