|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Baldwin v Baldwin  EWHC 4857 (Fam) (14 March 2014)
Cite as:  EWHC 4857 (Fam)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
B e f o r e :
|MATTHEW DAVID BALDWIN||Petitioner|
|- and -|
|SELAMAWIT SEMU BALDWIN||Respondent|
Official Court Reporters and Audio Transcribers
One Quality Court, Chancery Lane, London WC2A 1HR
Tel: 020 7831 5627 Fax: 020 7831 7737
MISS L. MOTTAHEDAN (instructed by Expatriate Law) appeared on behalf of the Respondent.
Crown Copyright ©
MRS. JUSTICE PARKER:
"If our client does not receive the outstanding sum of maintenance within seven days it will be necessary for her to apply to the court for an order for interim periodical payments and maintenance pending suit in conjunction with an application for a Legal Services Order to meet our client's legal fees. Our client will rely on the attached agreement in relation to her claim for costs. Our client is in the process of preparing her Form E. Please confirm that you will be in a position to exchange on 16th September, 2013."
"We are somewhat surprised at the threat made in your letter. With respect, if your client feels she has a right to so much money from our client, then by all means let her make her application to the court. We do not believe she will succeed with it".
Mr. Wilkinson's submits that that was a challenge to the jurisdiction. I do not read it in that way. This letter has to be looked at in the context of all the correspondence subsequent to the petition. It reads as a challenge to quantum.
IT IS ORDERED THAT
The maintenance pending suit hearing will be heard by the District Judge on 27th January 2014
"(1) the parties shall no less than fourteen days prior to hearing file and serve a statement limited to:
(a) their income over the last twelve months;
(b) their present outgoings;
(c) any changes that they foresee to their income and outgoings over the next twelve months;
(d) the order that they will be asking the court to make".
"Notwithstanding the above, we are totally confused by your client's application for MPS. As you are aware, our client's petition is based solely on his domicile in England and Wales. In the circumstances therefore your client will have considerable difficulty in establishing appropriate law to allow such an order to be made".
The letter continues, after some comments in relation to child contact,
"Unless your client is prepared to withdraw her application for MPS immediately we shall be forced to brief counsel and seek a wasted costs order against your client. We would suggest that this matter be dealt with, as previously suggested by us, with careful negotiation once the Form Es have been exchanged. This is a short marriage and your client's only entitlement is that of capital".
Then the husband also stated that he intends to make a Children Act application. It is asserted that the wife, in Ethiopia, has not permitted contact. The letter concludes,
"Our client has been sending money to your client for child support. As you refer in the supporting affidavit our client made it very clear that he felt forced into an agreement in June 2013 and has since resiled from his acceptance of same on the basis that it has always been your client's intention to return to Ethiopia".
"We presume that you are referring to Art. 3 of Council Regulation EC4 of 2009. If so, you will of course be aware that there is no restriction on our client's maintenance claim as it was your client who petitioned for divorce based on his sole domicile. Our client then accepted the basis of this jurisdiction. This is therefore very much a maintenance case as our client has no access to income and is the primary carer of an eleven month old child".
They asked for the husband's statement in accordance with DJ Lethem's order.
"I am not clear how the applicant feels that she is able to make this application to the court. As I understand the law, my petition relies solely on my domicile in England".
"Please note that the district judge, having considered the evidence filed, is not satisfied that the petitioner is entitled to the decree sought because 'Part 3 of the petition as to jurisdiction does not record a ground recognised under Brussels II. Amend petition to show the court has jurisdiction and reserve'. The petitioner should deal with the above matters and renew the request for directions for trial".
I confess to failing to understand why there is any jurisdictional problem at all since in the Petition, in Section 3 "Jurisdiction", it is asserted that, "The court has jurisdiction to hear this case under Article 3.1 of Brussels II (Revised) on the following grounds: "Other - the petitioner is domiciled in England and Wales".
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 concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or
(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties".
It is common ground that this petition, being based upon the husband's domicile as claimed by him, is governed by Article 3(c). Therefore, the wife has to establish, under Articles 4, 5, or 7, which are separate and not to be taken together, an exception to that rule.
Choice of Court
1. The parties may agree that the following court or courts of a Member State shall have jurisdiction to settle any disputes in matters relating to a maintenance obligation which have arisen or may arise between them:
(a) a court or the courts of a Member State in which one of the parties is habitually resident;
(b) a court or the courts of a Member State of which one of the parties has the nationality;
(c) in the case of maintenance obligations between spouses or former spouses:
(i) the court which has jurisdiction to settle their dispute in matrimonial matters; or
(ii) a court or the courts of the Member State which was the Member State of the spouses' last common habitual residence for a period of at least one year.
The conditions referred to in points (a), (b) or (c) have to be met at the time the choice of court agreement is concluded or at the time the court is seized.
The jurisdiction conferred by agreement shall be exclusive unless the parties have agreed otherwise.
2. A choice of court agreement shall be in writing. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing'.
3. This Article shall not apply to a dispute relating to a maintenance obligation towards a child under the age of 18.
4. If the parties have agreed to attribute exclusive jurisdiction to a court or courts of a State party to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007 in Lugano (hereinafter referred to as the Lugano Convention), where that State is not a Member State, the said Convention shall apply except in the case of the disputes referred to in paragraph 3.
Jurisdiction based on the appearance of the defendant
Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction.
Where no court of a Member State has jurisdiction pursuant to Articles 3, 4, 5, and 6, the courts of a Member State may, on an exceptional basis, hear the case if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected.
The dispute must have a sufficient connection with the Member State of the court seised".
There is as yet little authority on the Maintenance Regulation and none on these precise provisions.
"-- the scheme of the Regulation is to ensure that jurisdiction rests with the courts of the child's habitual residence. Article 12 provides a limited opportunity for parents to elect for the jurisdiction of the court seised with their divorce proceedings. However there must be unequivocal consent from both parents to the exercise of jurisdiction specifically in relation to matters of parental responsibility and providing that that election is consistent with the best interests of the child".
"Such a choice may be made in advance of proceedings or at the time that the court is seised. Such an agreement may be informal as Article 4.2 indicates (for example, in solicitors' correspondence). Most commonly such an agreement will be found in a pre-marital agreement".
Even before I was referred to the notes to Article 4, I had taken the view that it must be the case that solicitors' correspondence or other communication in writing can demonstrate an agreement.
"-- before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction".
"A defendant has fourteen days from filing an acknowledgment of service to contest jurisdiction. Otherwise Rule 11(5)(b) states that the respondent will be treated as having accepted that the court has jurisdiction to try the claim irrespective of subsequent jurisdictional contest".
Rule 11 is applied strictly.
In order to remedy, in particular, situations of denial of justice this Regulation should provide a forum necessitatis allowing a court of a Member State on an exceptional basis to hear a case which is closely connected with a third State. Such an exceptional basis may be deemed to exist where proceedings prove impossible in the third State in question, for example because of civil war, or where an applicant cannot reasonably be expected to initiate or conduct proceedings in that State. Jurisdiction based on the forum necessitatis should, however, be exercised only if the dispute has a sufficient connection with the Member State of the court seised, e.g. the nationality of one of the parties".