TY vs XA

This case concerned an application by XA to set aside a grant of leave to TY to bring an application for financial provision following their overseas divorce.

TLDR:

• XA applied to set aside leave granted to TY for financial provision after their divorce.
• The case involved complex issues of jurisdiction and the application of foreign law.
• The court ultimately dismissed XA's application to set aside the leave.

The case has a long history, with the initial leave being granted by Jenkins DJ on 24 April 2023. TY, referred to as the Wife, sought financial provision following a divorce in Germany. XA, referred to as the Husband, applied to set aside this leave, arguing that the court in this jurisdiction should not top-up the provision made in Germany.

The Husband's application was based on two grounds: first, that the court in this jurisdiction is not permitted to top-up provision made in Germany under the EU Maintenance Regulation and/or the Hague Maintenance Convention; and second, that the Wife's factual allegations regarding the circumstances of their agreements were fanciful.

The court examined the long history of the case, including the parties' backgrounds, their marriage, and the agreements they had signed. The court noted that the Husband had a successful business career and lived in London with his second wife and children, while the Wife, a home-maker and child-carer, also resided in London with their two children.

The parties had executed an Austrian Pre-Nuptial Agreement and a German Separation Deed, which the Wife claimed were signed under duress and without proper financial disclosure. The Husband disputed these claims, asserting that the agreements were valid and fairly negotiated.

The court considered the relevant legal principles, including the decision in Potanin v Potanina, which clarified the test for setting aside leave. The court emphasized that the burden of proof was on the Wife to show a substantial ground for making the application for financial provision.

Ultimately, the court found that the Wife had established a substantial ground for her application and dismissed the Husband's application to set aside the leave. The court noted that the case should proceed to a final hearing where all the issues could be fully examined.

The court also highlighted the importance of the parties' connections to England and Wales, noting that both parties and their children were now habitually resident in the jurisdiction. This connection was a significant factor in the decision to grant leave for the application to proceed.

In conclusion, the court dismissed the Husband's application to set aside the leave granted to the Wife, allowing her application for financial provision to proceed to a final hearing.

Legal representatives: Mrs. Rebecca Carew Pole KC (instructed by Verdags Solicitors) for the Applicant, Mr. Michael Horton KC and Ms. Sophie Khan & Co (instructed by Direct Access) for the Respondent.

Judicial Panel: Mr. Justice Moor

Case Citation Reference: [2024] EWFC 96