Financial Remedies Journal: AW v AH [2022] EWFC 195

AW v AH [2022] EWFC 19511 August 2022

Published: 07/07/2023 21:42

Nicole Bryan-QuaminaNicole Bryan-Quamina is a junior barrister at 36 Family (part of The 36 Group). She is regularly instructed in family finance and private children matters. She has given webinars on TOLATA and FLA injunctions as well as a seminar for Kent Resolution on cohabitation in financial remedy proceedings.

https://www.bailii.org/ew/cases/EWFC/HCJ/2022/195.html

Deputy District Judge Michael Horton QC. The reserved judgment at a final hearing for financial relief under Part III of the 1984 Act. Short marriage of 3 years including cohabitation, one child of the family aged 3.5 living with the wife (AW) in England. The husband (AH) had returned to China in 2020.

A judgment was made in October 2021 in MCA 1973 proceedings. However, AH obtained a divorce in China before the English courts had pronounced decree nisi in AW’s divorce petition.

Issue: whether to make the same orders as per the October 2021 judgment or whether other orders would produce a fair outcome.

The judge sets out a helpful summary of the law at [31]–[36]. The court held the fair outcome would be an order in terms very similar to the 2021 judgment because:

There was a strong connection between the parties and England and Wales.
There was nothing save for a child maintenance order made by the Chinese court, with which AH had not complied.
Despite a lack of independent expert evidence on Chinese law, the court was satisfied that it was more likely than not that, in accordance with an email from AW’s attorney, she could no longer obtain assets from AH in the Chinese courts relating to English property.
There were 3 English properties available for orders to be made to meet AW and their son’s needs. Such orders were likely to be enforceable.
There was no delay which would influence the outcome.
Considering all the circumstances, and the same factors as would be considered under s 25 MCA 1973, this was a fair outcome.

For helpful commentary on the court’s power to order that a judge execute documents on a defaulting party’s behalf, see [38]–[40].