District Judge Troy. Application by W for leave to bring a claim pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 (’the MFPA’).

Background

• This was a six-year marriage with three children. The total pot amounted to c.£842k before costs of sale/CGT, or c.£700k after a loan owed to W’s parents (c.£150k) was repaid. H earned c.£27k per month with a potential bonus.
• Malaysian Order. Applications for judicial separation, divorce petitions and cross applications for financial relief took place before Mrs Justice Peters in Malaysia on 7 February 2023. The net effect of the Malaysian Order can be summarised as follows:

1. loan to W’s parents to be repaid (c.£150k);
2. W to receive £345k out of c.£700k (ignoring pension), amounting to almost 50% of the capital assets before CGT and costs of sale;
3. W to receive spousal maintenance of c.£30k p.a. (reducing until termination in 2036) and c.£36k p.a. for the children (£1k per child until 18/completion of secondary education);
4. W to receive three further payments (20% of H’s net annual bonus) capped at £15k to go towards her pension;
5. H to pay any school fees and extras; and
6. no clean break provision.

NB. DJ Troy held that it was clear from the authorities that the court should approach the application without an in-depth analysis of the factual matrix; [8].

The law

• Under s 13 MFPA, the court must consider whether there is substantial ground to bring the application. In Agbaje v Agbaje [2010] USKC 13 it was made clear that substantial means ‘solid’; as such the threshold is higher than demonstrating there is a ‘serious issue to be tried’ or ‘good arguable case’ (reaffirmed in Traversa v Freddi [2011] EWCA Civ 81).
• The court is not expected to provide a ‘top up’, but rather remedy those situations in which the court may conclude that a foreign order is unfair, in the sense that it is inadequate.

Analysis

• The court should not grant leave on the basis that an order in this jurisdiction is likely to have been more favourable.
• The question is the ‘adequacy’ of the financial provision in Malaysia, not that DJ Troy or any other judge may be persuaded to make a different order.
• DJ Troy was not satisfied that the Malaysian Order failed to make adequate provision and the order fell within the discretion which may have been exercised by a judge in this jurisdiction.
• The capital award (per the Malaysian Order) was found to be fair for the following reasons:

1. it provided W with half of the total pot (after repayment to her parents), contrary to H having a clear argument that the properties in Australia were non-matrimonial in nature;
2. the treatment of the loan from W’s parents as a hard loan (per H’s approach and endorsed by the court) was a good outcome for W; the court in England and Wales could have concluded that this was a soft loan;
3. W was awarded a solid housing award, protected from the vagaries of the market, as the non-matrimonial properties would need to be sold to meet the award;
4. although payment of the housing award was over a three-year term, there would be options in the rental market for W;
5. it was unclear whether W’s mortgage raising capacity was contemplated by Mrs Justice Peters; a court in this jurisdiction would consider such evidence.

• The periodical payments. W’s budget was c.£11k per month and H simply earning at a higher level would not necessarily justify such an award. W would receive £81k in terms of spousal maintenance, children’s periodical payments and bonuses for the following two years. This would not include any earned income.
• James v Seymour. W’s approach by grossing up H’s income before undertaking the calculations in her budget had some merit. H may have been ordered to pay a higher figure for the children, but the court would still need to balance the arguments in respect of the additional costs he would face in exercising contact and his obligation to pay school fees if incurred.
• It was considered that H may not have done quite as well in this jurisdiction (considering his current earnings), although this would be dependent on W’s earning capacity, per the statutory steer in s 25A of the MCA 1973 requiring a transition to financial independence where possible.

Decision

• W’s application for leave was dismissed.
• The test is whether Mrs Justice Peters, in the exercise of her discretion, failed to make adequate provision.
• Considering the Malaysian Order as a whole, whilst the maintenance may be less, the capital provision would enable W to rehouse in adequate accommodation mortgage-free (with the option for modest borrowing).
• DJ Troy was not satisfied that W had shown a ‘substantial’ or ‘solid’ basis for making her application, particularly when considered in light of her failure to engage in the conclusion of the Malaysian proceedings. This was of her own choosing and may well have been a tactical ploy.
• DJ Troy held at [148] that W:

‘should not be allowed a second bite at the cherry by way of an appeal through the back door in circumstances where the Malaysian order can neither be said to be unfair nor failing to make adequate provision.’