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Divorcing wife loses maintenance claim over jurisdiction

By 6 January 2021News

The British wife of a French airline pilot has lost a claim for maintenance made in the English courts.

In TMB v PLB, the couple had met in 2003 and live together for a number of years, initially in France. Both parties are now in their 50s.

After a decade together the couple moved to Hong Kong, and married there the following year. They later relocated to the Philippines and it was there that the marriage eventually broke down. The husband moved back to Hong Kong while the wife continued to live in the Philippines on a tourist visa.

In January 2020 the wife filed for divorce in the English courts. Her application was based on the fact that her ‘domicile’ was still the UK. ‘Domicile’ is a legal term referring to the country in which a person lives on a long-term basis or with which they have a substantial connection, such as nationality. It is distinct from ‘habitual residence’, which refers to the country in which a person usually lives at the time, which may not, of course, be the same as their domicile. In this case, the United Kingdom was the wife’s domicile because she held British citizenship but by the time of the divorce, the Philippines had become her habitual residence.

The husband did not dispute the application and their divorce reached the penultimate decree nisi stage at the beginning of August 2020. As is routine, the wife made financial claims during the divorce process, including maintenance or ‘periodical payments’. Lawyers refer to the monetary elements of divorce as ‘financial remedies’.

The first appointment in the financial remedies process was scheduled for November. But, just one week beforehand, the husband, who had not previously objected, suddenly argued that his estranged wife’s claim for maintenance was not permitted under the Maintenance Regulation. This European Union legislation governs ‘conflict of laws’ between different states in the payment of spousal or child maintenance. The regulation defines which laws should apply in cases involving more than one country and which courts should have jurisdiction in particular situations.

Article 3 of the Maintenance Regulation states:

“In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

(a) the court for the place where the defendant is habitually resident, or

(b) the court for the place where the creditor is habitually resident, or

(c) the court which, according to its own law, has jurisdiction to entertain proceedings…unless that jurisdiction is based solely on the nationality of one of the parties…”

The wife’s legal team accepted the relevance of Article 3(c) following the UK’s exit from the European Union, but argued that it was outweighed by three other Maintenance Regulation articles, namely:

  • Article 4, concerning the choices of court open to the parties involved.
  • Article 5, concerning jurisdiction “based on the appearance of the defendant” – i.e. a jurisdiction accepted by the recipient of the claim.
  • Article 7, concerning situations in which there are simply no jurisdictions better suited to hearing the case or where it “would be impossible in a third State with which the dispute is closely connected.”

But, at a family court hearing in Liverpool, Judge Sir Jonathan Cohen concluded that article 7 could not apply as there no expert evidence had been presented to that effect. In addition, article 4 did not apply because no agreement regarding the choice of court had been made in writing. Finally, the Judge also rejected the relevance of article 5 because the husband had not formally accepted the jurisdiction of the English courts.

Referring to the husband’s last-minute objection, Sir Jonathan explained:

“Plainly, a delay in raising the issue of jurisdiction may give substance to an argument that jurisdiction has been accepted but the fact that [the husband] did not flag up his position when completing his Form E [initial financial declaration] does not in itself amount to an acceptance of jurisdiction.”

You can read the full judgement here.