Key Facts
- •Wife (XA) applied to set aside leave granted to Husband (TY) to bring a financial provision application following an overseas divorce.
- •This was the second set-aside application; the first was dismissed.
- •The Supreme Court's decision in Potanin v Potanina [2024] UKSC 3 changed the test for set-aside applications.
- •The parties were divorced in Germany in 2019; a separation deed was signed.
- •Wife alleges the pre-nuptial agreement and separation deed were improperly obtained.
- •Wife and children now reside in the UK; Husband also resides in the UK.
- •Wife claims Husband's assets were £60-100 million at separation; she received minimal financial provision in the German divorce.
- •Husband's current net assets are claimed to be £29,494,914.
Legal Principles
Test for grant of leave under Part III of the Matrimonial and Family Proceedings Act 1984: Applicant must show 'substantial' (solid) ground for a claim.
Agbaje v Agbaje [2010] 1 AC 628 and Potanin v Potanina [2024] UKSC 3
Set-aside application uses the same test as the initial application for leave; 'compelling reasons' or 'knock-out blow' test is incorrect.
Potanin v Potanina [2024] UKSC 3
Part III cannot be used to 'top up' foreign provision to equate to an English award; mere disparity is insufficient.
Zimina v Zimin [2017] EWCA Civ 1429
Court considers factors in section 16(2) of the 1984 Act when deciding whether it's appropriate to grant leave.
Matrimonial and Family Proceedings Act 1984, section 16(2)
Maintenance Regulation and Hague Maintenance Convention impact on the recognition and enforcement of foreign maintenance orders; English court generally cannot review the substance of a foreign order.
Maintenance Regulation, Art 23, 42, 48; Hague Maintenance Convention, Art 3(e), 28, 30
Outcomes
Husband's application to set aside leave was dismissed.
Wife met the test for 'substantial ground' for her application, considering the current connections of the parties and children to the UK, despite the limited connection during the marriage and the existence of the German separation deed. The Maintenance Regulation and factual disputes were deemed matters for the final hearing, not the set-aside application.