- H and W been married for many years, and
lived together in England.
- Shortly after the parties’ separation in
April 2017, H moved to Jersey with his new partner. Within 6 weeks of his
arrival in Jersey, H petitioned for divorce there.
- W’s belief was that H had chosen to file
for divorce in Jersey rather than England because Jersey law had no provision
for pension sharing orders.
- Both H and W were advised by Jersey
lawyers, and the parties reached an agreement embodied in a consent order made
by the Jersey court in March 2019. It provided for a clean break, with the FMH
to be sold and the proceeds divided 55% to W and 45% to H.
- Very shortly after the making of the
consent order, in April 2019, W made an application in England under Part III of
the Matrimonial Family Proceedings Act 1984. Her application was without notice
- On 21 May 2019, Mr Justice Cobb gave W
permission to apply for a pension sharing order. No reference had been made at
the hearing (which H did not attend) to s12(1)(a) of the MFPA 1984, which
states that relief under the Act is only available to those who have divorced
‘in an overseas country’, or to s27(7)(3), which states that an ‘overseas
country’ means a country or territory outside the British Islands, and the term
‘British Islands’ is a term which has, since 1889, included the bailiwick of
- H made a (late) application to set aside
- Should H be granted permission to set
aside the permission granted by Cobb J to W’s application under Part III, on
the basis that there was no jurisdiction?
- What was the impact, if any, of H’s late
application to set aside?
- Was there any way in which the court
could interpret the MFPA 1984 so that Jersey could count as an overseas country
for the purpose of the Act?
- Mr Justice Cohen extended H’s time for
applying to set aside the order of Cobb J, and granted H’s application. W’s
application under Part III was struck out.
- Cohen J was not persuaded by submissions
made on behalf of W that there would be a ‘serious injustice’ to W if she were
not able to access relief under Part III because H’s pension income was some
2.5 times that of W’s. The absence of powers to pension share can be dealt with
in other ways by, for example, offsetting – although it was unclear whether
this had been a factor in the parties’ agreement of the unequal division of the
proceeds of sale from the FMH.
- It had been advanced on behalf of W that
the court should interpret the relevant sections of the MFPA 1984 by following
the three principles of interpretation: the ‘literal rule’, the ‘mischief
rule’, and the ‘golden rule.’ The ‘mischief rule’ was defined as the principle
of considering what was the mischief and defect for which the common law did
not provide, and to interpret statute in a way that would suppress this
mischief. The ‘golden rule’ was defined as the principle of interpreting
statute in a way that would prevent inconsistency and absurdity in the
application of the literal rule.
- Cohen J was clear that the ‘literal
rule’ required him to set aside W’s application, as the definition of ‘overseas
country’ was clear. He also rejected the ‘mischief rule’ interpretation,
stating that he was being asked ‘not simply to construe the statute, but to
ride roughshod over it.’ Finally, Cohen J rejected the ‘golden rule’
interpretation on the grounds that he did not accept that there was
inconsistency or absurdity in applying the statute as worded. There was nothing
ambiguous in the statute; the wording of the 1984 Act was deliberate; and it
was for Parliament and Parliament alone to change it if it thought appropriate.
- Finally, Cohen J made a costs order
against W in the sum of £11,000. It was clear that costs must follow the event,
and he held that W had known from the outset of the proceedings, or ought to
have known, that her case was on weak ground. H should not be forced to bear
costs because of W’s determination to run this point.