On 14 February 2011 the Court of Appeal handed down a judgment which will allow an Italian man, separated and divorced in Italy, to make an application to the courts in England and Wales for financial relief. This latest decision grants Mr Traversa permission to make an application under Part III of the Matrimonial and Family Proceedings Act 1984 ("Part III") for financial provision after his Italian divorce.
Facts
Mr Traversa and Ms Freddi are both Italian nationals and were
married in Italy in 1987. Ms Freddi came from an affluent family
and was independently wealthy. Mr Traversa was from a 'modest
Calabrian family'. They entered into a marriage contract in the
standard Italian way, providing for the regime of separate property
by the addition of the 'briefest words' in the relevant box
in the marriage certificate. Mr Traversa received no legal advice
at the time. After the marriage, the parties divided their time
between England (where they successively invested in restaurant
businesses) and Italy. The parties have two children, born in 1988
and 1991.
In March 2003 Ms Freddi issued separation proceedings in Italy and
in November 2004 a separation order was made. Mr Traversa took
little or no part in the proceedings. Ms Freddi retained the former
matrimonial home situated in Palmers Green, London and a property
in Italy; both of which were in her name in any event. Mr Traversa
was ordered to pay child maintenance which was not paid or
enforced.
Ms Freddi obtained a decree of divorce in Italy in February 2008
and in April 2008, served Mr Traversa with a notice to quit the
former matrimonial home in London. He subsequently applied to the
English Courts under Part III for financial provision.
At first instance, leave to make the Part III application was
refused on the grounds that the parties' superior connection
was with Italy. However following the momentous decision of the
Supreme Court in the case of Agbaje v Agbaje [2009] (which set out
the correct interpretation and application of Part III), Mr
Traversa decided to apply for permission to appeal out of time,
which was granted by Wilson LJ.
Court of Appeal decision
By a unanimous decision of the Court of Appeal, Mr Traversa has
been given permission to make an application for financial relief
under Part III.
Applying the 'simple' test under Agbaje that the principal
object of determining an application for leave is to 'prevent
wholly unmeritorious claims being pursued' but allowing a
'solid' case to proceed, the Appeal Court Judges agreed
that the fact that Mr Traversa had made no application for any form
of financial relief in Italy, had been served with eviction
proceedings and he would transfer the property in Italy in his sole
name to Ms Freddi in return for the former matrimonial home in
England, were sufficient to pass the 'solid' basis
threshold test.
Whilst the Court of Appeal praised the argument of Ms Freddi's
legal team (that following Radmacher, the decision of the parties
to elect a separate property regime was enforceable and should
therefore be sufficient to prevent permission for leave being
granted), it was a point that needed to be tested, as to fairness
in the present circumstances, by the Court at the resulting
trial.
In addition, the Court of Appeal rejected a growing body of opinion
that an order containing any element of maintenance fixes exclusive
jurisdiction in relation to all financial issues on divorce. In
this case the only financial order in Italy was for child
maintenance.
Implications
This decision confirms the threshold test set out by the Supreme
Court in Agbaje to make financial claims of this sort where there
is a pre-existing foreign order and applies it to the situation
where the individuals involved are both European.
It confirms that the Court continues to protect its discretion to
decide as to the fairness or otherwise of any pre-nuptial contract,
or as in this case matrimonial property election, following
Radmacher.
We will have to wait and see whether the Court decides that the
outcome produced by the Italian Court in applying the separation of
property regime is considered 'fair' in the current
circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.