Purchas LJ said: ‘the phrase ‘substantial ground for the making of an application for such an order’ is clearly central to the issues in this application . . [i]n particular when the court comes to consider such an application, it will have to take into account under s. 16(1) whether in all the circumstances of the case it will be appropriate for such an order to be made by a court in England and Wales. If it is not satisfied that it would be appropriate (and that is a positive onus), the court shall, as a matter of mandatory instruction, dismiss the application.
In my judgment that section reflects the fundamental rule of comity as between competent courts dealing with matters of this kind. Of course s. 16 is to be considered on the application itself. Mr. Bond very properly drew the distinction between the criteria which the court should take into account if it decides to entertain the application and those which the court has to consider on the application for leave to make the application. Nevertheless, if on the application for leave to apply it is clear that if leave were given the application must founder at the first hurdle of s. 16(1), then it would clearly be wrong for the court to grant leave to apply in the first instance. So it is not possible to isolate the considerations which arise under this group of sections’ and
‘the purpose of this Act is generally apparent, namely, that it is there to remit hardships which have been experienced in the past in the presence of a failure in a foreign jurisdiction to afford appropriate financial relief. The obvious cases are those jurisdictions where there simply are not any provisions to grant financial relief to wives or children or, maybe husbands and children. In such cases, although the dissolution of the marriage has taken place in a foreign jurisdiction according to foreign laws, then the courts in this country are empowered by Parliament to step in and fill the gap. For my part I do not believe that the intention of Parliament in passing this Act was in any way to vest in the English courts any power of review or even correction of orders made in a foreign forum by a competent court in the whole matter had been examined in a way exactly equivalent to the which examination which would have taken place if the application had been made in the first instance in the courts here. That is not the object of this legislation at all’.
There is no opaqueness in the language of s16.
Russell LJ said: ‘Prima facie the order of the foreign court should prevail save in exceptional circumstances . .’
Judges:
Purchas LJ, Russell LJ
Citations:
[1989] Fam 47
Statutes:
Matrimonial and Family Proceedings Act 1984 13 16
Jurisdiction:
England and Wales
Cited by:
Cited – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Cited – Hewitson v Hewitson CA 6-Oct-1994
W (former) had obtained leave ex parte to seek financial relief, and the former H now requested that that leave be set aside. H and W had been divorced in California. W had signed a ante-nuptial agreement. W was now resident here. H argued that . .
Lists of cited by and citing cases may be incomplete.
Family, Jurisdiction
Updated: 03 February 2022; Ref: scu.406671