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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> T v T [2010] EWHC 3776 (Fam) (21 December 2010) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2010/3776.html Cite as: [2010] EWHC 3776 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		21st December 2010

MR. JUSTICE MOYLAN:

1.  This hearing concerns an application dated 16th July, 2010 made by a wife, or former wife, for an occupation order under the Family Law Act 1996 in respect of a property in West London ("the property").  The wife contends that the parties are not validly divorced whilst the husband contends that they are. 
2.  By an interlocutory order made by the French Court of Appeal on 16th December, 2010 it was decided that the wife's appeal against a divorce order made by the Family Judge of the District Court of Paris on 3rd February, 2009 was in time.  The husband had sought to procure the dismissal of the wife's appeal on the basis that it was out of time.  The French Court of Appeal decided that her appeal is in time and accordingly is admissible and has adjourned the appeal for further orders and directions to a date in the early part of next year. 
3.  It appears from previous evidence provided in the proceedings before me by French lawyers, instructed respectively on behalf of the wife and of the husband, that as a result of the appeal being declared admissible the parties remain married.  That certainly is the effect of the opinion expressed by the wife's French lawyers. The husband's French lawyers do not specifically address the issue of the status of the marriage if the appeal is found (as it has been by the French court) to be in time.
4.  I propose accordingly to refer to the parties during the course of this judgment as husband and wife. 
5.  The wife has been represented throughout this hearing by Mr. Hale.  The husband was represented by Mr. Singleton, QC and Mr. Brazil at the first part of this hearing which took place as long ago as 8th October, 2010.  He was represented at the adjourned part-heard hearing on 15th November and today, 21st December, by Mr. Glaser. 
6.  In this judgment I am determining only the issue raised by the husband of this court's jurisdiction to hear the application under the Family Law Act brought by the wife.  I am not determining the substantive merits of the application.  By agreement of the parties, I am determining the jurisdictional issue on submissions only, having heard no oral evidence. 
7.  The hearing has followed what can only be described as an unsatisfactory course.  It was listed for one day on 8th October.  Having regard to the extensive material and numerous points relied upon by both parties this time estimate, which had been agreed by both parties, was clearly inadequate.  By the end of that day Mr. Singleton was only part-way through his submissions in response to the submissions which had been made by Mr. Hale.  I was sitting on circuit for the next three weeks and because of this, and pressure of other work, the hearing was adjourned to the first available date, being 15th November, 2010.  On this occasion, as I have said, the husband had dispensed with the services of Mr. Singleton and Mr. Brazil and was represented by Mr. Glaser, who had appeared for him at, certainly, a previous hearing during the course of these proceedings.  
8.  On 15th November I was faced with a development which derailed that hearing.  The development was the commencement of possession proceedings by a company ("WEL"), which company is the registered owner of the property. 
9.  The possession proceedings had been commenced in the West London County Court on 26th October, 2010.  This in itself might not be a surprising development.  At the first hearing on 4th November the proceedings were transferred by the West London County Court to be listed before me on 15th November.  What was in some respects surprising was that it was apparently asserted at the hearing on 4th November that the ultimate owner of WEL is a person called Mr. J T who was said to have become the owner of WEL pursuant to a share sale agreement dated 16th February, 2009.  By that agreement Mr. J T effectively, through a corporate vehicle of his, had bought the shares in a Panamanian corporation which was the owner through intermediate companies of WEL and the property.  The purchase price, so it is said, for the shares was $2.4 million.  This development was surprising because no mention had been made of any such share sale agreement during the course of the Family Law Act proceedings, which, as I have said, commenced on 16th July, 2010.  The husband, in his evidence filed for the purposes of those proceedings had made no mention of this sale. 
10.  The wife had been served with a bundle of documents relating to the possession proceedings on Friday, 12th November, 2010.  I gave directions in respect of the possession proceedings and, as result of the delay caused by having to deal with them, Mr. Glaser was unable to commence his submissions in respect of the Family Law Act application until late morning.  His submissions developed in a very different way to those which had been made on behalf of the husband by Mr. Singleton.  While Mr. Singleton had focused in his oral submissions on the factual background and the Family Law Act, and in particular whether the husband was a person who is entitled to occupy a dwelling house by virtue of a beneficial estate or interest, or contract, Mr. Glaser focused instead on the provisions and effect of what I will call at present Brussels I and Brussels II R.  Again, regrettably, time proved inadequate to enable counsel to complete their respective submissions on all the points raised.  So, counsel agreed that I should determine in this judgment only the jurisdictional points raised by the husband under Brussels I and Brussels II.  Because of the late start on 15th November I was unable to give judgment that day.  I again went on circuit for three weeks.  The first occasion that I have been able to give judgment is today, 21st December, 2010.  With that preamble I turn to set out some of the history.
11.  The husband is aged 59.  He was born in the Lebanon and is also a French citizen.  The wife is aged 48 and is an English national.  The parties married in 1985 and separated in or about 2006.  There is a dispute as to whether the parties finally separated at this date, but in any event the marriage was at an end by 2009.  There are two children of the family, now aged 21 and 14.  The elder child attends university in London and the younger goes to school in London.  At present the elder child is living in accommodation, certainly during the week, provided by the father.  The wife says that he also spends periods with her and the younger child, who are currently living at the property as a result, in part, of orders made earlier in these proceedings. 
12.  It appears that during the course of the marriage - or certainly the later part of the marriage - the parties' main matrimonial home was in Paris.  However, in addition the wife alleges that during the marriage the parties also had homes in Cap d'Antibes in the South of France, in London and in the Lebanon.
13.  The property (in London) was purchased in 1995.  The wife contends that the property was also a matrimonial home.  The husband contends that the property has never been "the matrimonial home".  He contends that he and the family have only sometimes stayed for short periods at the property "when we have been in London for business and/or pleasure".  In support of his case the husband has produced a letter, dated 22nd July, 2010, from his French private client lawyer, which states that the parties "have had their principal residence in France ... without interruption since their marriage until their divorce was pronounced".  The fact that the parties' principal residence has been in France does not of itself mean that the property in West London was not, or could not have been, also a matrimonial home. 
14.  The husband instituted the divorce process in France on 26th October, 2006.  I will return to these proceedings a bit later in this judgment referring at present simply to the existence of a non-reconciliation order of 5th June, 2007 and a divorce judgment of 3rd February, 2009.  The wife, as I indicated at the outset of this judgment, filed an appeal against the divorce judgment on 25th January, 2010. 
15.  In September 2007 the wife and the children moved to England.  They lived in rented accommodation.  At that time the husband was providing the wife with substantial maintenance approaching approximately £400,000 per year.  In September 2008 the wife and children moved to a rented Mews property in London.  The wife contends that the husband failed to pay all the rent for this property when due, whilst the husband contends that he provided the wife with sufficient monies from which to pay the rent.  The husband took over the tenancy of this property for a term of one year from August 2009, the tenancy expiring at the end of August 2010. 
16.  There is included in the bundles correspondence between the parties' respective French lawyers dealing with, among other issues, accommodation for the wife and children.  In a letter dated 2nd March, 2010 the husband proposes that he will pay rent of €5,000, being the amount he is required to pay as maintenance under the non-reconciliation order.  This proposal does not make entire sense to me because as I understand it the husband's case is that the effective order is that of 6th February, 2009, not the non-reconciliation order.
17.  On 7th May, 2010 the landlords of the rented Mews property sent a letter to the wife stating that the rent was in arrears in the sum of £73,500.  It was also stated that possession proceedings would be commenced without warning if there was any further default.  On 24th June, 2010 a letter was sent on behalf of the landlords stating that there were still arrears of £36,000 and repeating the threat that proceedings for eviction would be commenced without further warning or notice. 
18.  On 30th June, 2010 the husband wrote to the landlord's agents stating that he had paid, and would be paying, all sums due and confirming that he was not going to renew the tenancy.  It appears that the husband's French lawyer received no response to his letter of 2nd March, 2010 and a further letter written on 2nd June.  The letter of 2nd June, 2010 said,

"Mr. T has still not had any indication from your client of the address where she intends to fix her residence and therefore that of their son from September [i.e. after the end of the Mews tenancy].  May I remind you that the lease has been terminated and that the agreement by Mr. T to take charge of the rent of his wife ends at the end of August, from this date confining himself to the provisions of the non-reconciliation order and therefore the payment of a monthly sum of €5,000 as the obligation to provide assistance apart from the contribution of €1,000 for the younger child".

19.  The husband's new French lawyer wrote again on 7th July.  The wife's, now former, French lawyer replied on 9th July, 2010 that so far as he was aware the wife had not moved and had no intention of doing so for the moment.  Given that the tenancy determined in any event at the end of August 2010 these comments, in particular "for the moment", make little sense. 
20.  On 31st August, 2010 the husband signed a tenancy agreement for a property in AV, West London at a rental of £1,000 per week for a term of one year.  He has put this property forward as being suitable for the occupation of the wife and the younger child.  The wife does not accept that the property is suitable for reasons set out in her evidence. 
21.  Turning now to the property history and other evidence, the wife asserts that she and the husband decided to buy a home in London and that they jointly found the property in West London.  It was, as I have described, purchased in 1995.  There is no direct evidence as to who became the registered owner on its purchase.  The wife says that the property was completely redecorated and refurbished with her direct involvement.  She gives extensive details of the work which was undertaken.  On 1st December, 1999 legal title to the property was transferred into the name of WEL, a British Virgin Islands company.  The wife asserts that the husband was, and is, the ultimate beneficiary and effective owner of the property through a corporate structure. 
22.  During the course of the hearing on 8th October Mr. Singleton, on behalf of the husband, agreed that the ownership structure of the property was as set out in a document which was produced, I believe, on behalf of the wife.  That structure is as follows: the West London property is owned by WEL which, in turn, is owned 100 percent by AA Inc., a Panamanian company, which in turn is owned 100 percent by a Panamanian corporation called AISA.  Mr. Singleton told me it was the husband's case that he was not the owner of AISA, but he provided me with no other information as to who the owner was said to be.
23.  The wife has registered matrimonial home rights against the property on three occasions: first, in 2006 or 2007; secondly, on 10th March, 2008; and, thirdly, on 17th February, 2010.  She states that the husband persuaded her to cancel the first two notices.  After the cancellation of the second notice the property was charged in favour of Barclays Bank in respect of monies borrowed to purchase an aeroplane.  The wife says it was the husband who was the purchaser of that aeroplane. 
24.  On 3rd January, 2000 an occupancy agreement was made between WEL and an entity called SI, situated in the Lebanon, and represented for the purposes of the agreement by a Mr. Y and the husband.  SI is identified as the tenant and was given "a licence to occupy" the property.  The agreement also records that WEL "is a company held in trust for the benefit (inter alia) of the tenant".  The corporate structure to which I have just referred by which THE PROPERTY IN West London has been owned contains no reference to SI.
25.  On 28th June, 2000 a further occupancy agreement was made between SI and the husband.  Under it SI "grants and permits occupancy" to the husband of the property.  The agreement granted to the husband "the possibility to occupy temporarily the property" on condition that he agrees and recognises that he has no permanent right of occupation and tenancy of the property and that he and his family will leave the property as soon as SI requires. 
26.  By a letter dated 10th November, 2006, which letter the wife alleges is a sham, SI informed the husband that "our" shareholders have decided to occupy the property permanently from 1st December, 2006.  The letter continues,

"As this will prevent the husband from occupying the property, as he has from time to time, his occupancy agreement is determined.  He is requested to remove all his belongings and furniture as soon as possible and in any event by 25th November, 2006".

27.  The wife asserts (as referred to further below) that the family's belongings were not removed and, in fact, remained in the property until she entered into occupation of it in July this year. She also asserts that she and the husband were staying at the property together in 2007. 
28.  On 29th August, 2007 Mr. J T, as a director of WEL, signed a document confirming that the husband was renting the property from 3rd January, 2000 to 25th November, 2006 in accordance with a rental agreement and that he has regularly paid all the rent due to WEL. 
29.  On 4th November, 2007 a Swiss lawyer writes confirming that he is the nominee of the husband in respect of WEL and that the husband is the ultimate beneficial owner. 
30.  On 10th December, 2007 an English solicitor, in an e-mail addressed, among others, to the husband states,

"I understand from the bank that Mr. T occupies the property when he is in London on business.  If this is the case Mr. T will need to be referred to as an occupier.  If Mrs T occupies the property at any time she will also need to be referred to as an occupier.  I understand from the bank that there are housekeepers in the property.  They will not be required to sign a Deed of Consent if you can confirm that either they occupy as part of a service agreement which can be terminated on notice or they are required to occupy the property as a condition of their work and they have no interest in the property".

The e-mail was sent in relation to a proposed charge over the property.

31.  In what are headed 'Replies to Preliminary Inquiries for a Proposed Mortgagee' it is said at para. 3.9,

"The mortgagor is not aware of any written leases, tenancy, or other rights of occupation.  But please note that the guarantor and his family occupy the property while in London and the guarantor's housekeeper occupies the property in the course of her employment".

These replies are dated 4th February, 2009 and certainly indicate that the husband and his family continued to occupy the property at that date. 

32.  A letter, or draft letter, dated 10th December, 2007, being sent to SB, purports to enclose an occupancy agreement between WEL and SI, an occupancy agreement between SI and the husband, and letters from the two employees of WEL, including the housekeeper who resides at the property as part of her job.  These documents certainly appear to demonstrate that the husband was still entitled to occupy and was occupying the property beyond the date stipulated in the letter dated 10th November, 2006, and well beyond that date, namely 25th November, 2006. 
33.  On 18th December, 2008 a manager of Barclays Wealth, a part of Barclays Bank plc, writes stating that, "We understand" the husband is the 100 percent beneficial owner of WEL.   On 19th December, 2008 a partner in St. James Place Partnership wrote to the husband saying,

"Dear Mr. T,

Further to your request for the re-finance of your Paris property and your [I emphasise] West London property, I attach a letter from Barclays Wealth, London which outlines the formal Head of Terms which have been fully credit and board approved.  The net proceeds will amount to (c) £4.5 million or €/US$ equivalent".

34.  On 22nd December, 2008 the same Swiss lawyer (as referred to above) writes to Barclays Bank confirming that the sole shareholder of WEL is AA Inc. and that he, the Swiss lawyer, holds these shares in nominee for the husband, "the sole ultimate beneficial owner".  The charge which was in due course obtained by Barclays Bank is dated 2nd February, 2009 and was registered against the property on 4th March, 2009, i.e. after the date of the share sale agreement. 
35.  On 1st July, 2009 interlocutory judgment was given in the High Court of the Isle of Man in the course of proceedings between a Mr. S and the husband.  The judgment records that on 7th September, 2008 the husband and Mr. S entered into an agreement whereby the husband agreed to purchase from Mr. S a single asset company, the asset being a Boeing executive aircraft.  The agreed purchase price was $8 million.  The husband paid the deposit of $4 million on or about 17th February, 2009.  The judgment also refers to the content of a letter, or e-mail, dated 23rd February, 2009 from the husband, which states, "It is me who is buying the plane". 
36.  In 2009 a firm of solicitors brought an action against the husband and WEL.  In the particulars of claim, dated 25th August, 2009 it is pleaded:

"1. WEL has been and remains the registered proprietor of the property known as [the West London property]...  The London property is used by the second defendant as his London home.

2. WEL is and was an investment vehicle whose sole purpose is to hold the London property on behalf of the second defendant (the second defendant is the husband).

3.  WEL is and was ultimately beneficially owned and controlled by the second defendant through a network of offshore companies.

4. Mr. B, a Swiss lawyer engaged to conduct WEL's affairs on behalf of the second defendant, and carrying on business (at his professional address) was a director of WEL ...

8. In or around December 2008 Mr. T approached Laytons on behalf of himself and/or WEL to assist with refinancing the London property.  On or about 10th February, 2009 Mr. B, acting as agent of WEL and Mr. T, signed Laytons' standard retainer letter ... The following were terms of the express retainer:

(i)  Laytons would arrange with Barclays Wealth a loan in the sum of £6 million in the name of WEL, to be secured against the London property;

(ii) Laytons would arrange the redemption of the existing charge on the London property in favour of Standard Bank of Jersey Ltd.".

At para. 12, under the heading 'French Loans Facility',

"At around the same time as Mr. T instructed Laytons in relation to the refinancing of the London property, he also instructed Laytons on behalf of himself and/or WEL to work in conjunction with a French notary appointed by him to obtain a further loan facility in the amount of €6 million to be secured against the Paris property.  Mr. T intended to use this facility to fund the purchase of the entire issued share capital of a single asset company, the sole asset of which was a Boeing 727 aeroplane from Mr. S.   

13.  Laytons duly acted on Mr. T instructions and a loan facility was obtained and secured against the French property".

37.  The solicitors obtained judgment and registered a charge against the property on 16th October, 2009. 
38.  The wife has also produced a schedule of assets signed by the husband and dated 23rd October, 2008.  The listed assets include the West London property and three car parking places in London.  Both are said to be owned by WEL.  The property is valued at €19 million and the parking places at €600,000.   The combined total of all the listed assets is put at €97 million. 
39.  In a letter dated 2nd January, 2009 and signed by the husband he confirms that he is the sole ultimate beneficial owner of the shares of the company called AISA.  In this letter this company is said to be the sole owner of two other companies called I1 and I2.  These companies in turn are said to be the sole owners of SCIL, which company is the sole owner of the former matrimonial home in Paris. 
40.  The wife, as I have indicated, asserts that the West London property has been a matrimonial home.  She says that it was purchased as, and has been, the family's London home. To quote from her affidavit of 28th July, 2010,

"From the time we purchased the FMH (the property) to the point at which our relationship broke down we would spend every Christmas and Easter holidays and half-terms at the FMH and we spent many weekends there except over the summer holidays when we would go to our home at Cap d'Antibes or to our yacht.  When we separated the respondent told me that the children and I were not allowed to live in the FMH.  I was obliged to leave behind by Range Rover in the garage.  Since moving back in I have found my personalised number plates in the house, but the car has gone.  I have also found the registration documents".

She exhibits to her affidavit registration documents relating to the husband's cars. 

"The respondent, the children and I each had monogrammed linen and this remains in the FMH, as do the respondent's CD collections, his books, his cigar boxes, his computers and other personal effects, his briefcases, his toiletries in the bathroom and the master bedroom, his personal backgammon set, his private papers relating to the children, his stamp collection, his fine wine collection.  Our housekeeper was in occupation throughout the relevant period and only left on 26th July, 2010.  There are personal papers and a large quantity of Hildebrand documents, including some as recent as 30th October, 2009 ... 

Other personal items in the house include a quantity of my clothes, our cutlery, crockery and glassware, and the children's old toys and … A's bicycle".

She exhibits a number of photographs which appear to show items still in the property bearing the family name or initials. 

41.  In the wife's affidavit sworn on 8th September, 2010 she says,

"The respondent (husband) was for certain in occupation of the property prior to the making of the initial order (a reference to the initial occupation order which I deal with later).  When I entered the property the housekeeper we had employed was still there and the property was full of the respondent's and my personal possessions".

42.  The wife gives considerable details in her affidavit evidence of the extensive works which she says were carried out to the property following its purchase.  She says that she was intimately involved in these works, and that they took 1½ years to complete.  The wife has also exhibited an inventory of the contents of the West London property which include tiles, monogrammed with the initials 'N' and 'Z', being the first letters of the parties' first names.   She gives other details of the familial nature of the contents of the property. 
43.  At para. 7 of her affidavit of 28th July, 2010 the wife says,

"It is my case that the respondent is content to treat the FMH as his home when it suits him and to hide behind two levels of corporate ownership and complicated occupancy arrangements when it does not.  The same applies to our Paris home.  The respondent filed for divorce in France in September 2006 and organised matters to look as though he was being ejected from his homes in London, Paris and Antibes.  This was a sham.  We attempted to reconcile during 2007 and spent time together in the FMH ...

10. Given that Mr. Brazil (one of the husband's counsel) has told the court on behalf of the respondent that the FMH was never our home, I presume it is not accepted that the respondent ever had any right to occupy".

She then refers to the occupancy agreements to which I have referred. 

44.  At para. 20 of her affidavit of 8th September, 2010 the wife says,

"It is important to me that the children and I have security of accommodation during such time as matters between the respondent and me in France remain unresolved.  I am advised by my French lawyers that the French law applicable to our matrimonial property is the French legal regime of community of property.  Accordingly, all property acquired by us during our marriage is part of the community and belongs to us in equal shares.  I contend that this includes all of the assets in the schedule signed by the respondent on 23rd October, 2008 save for any that he can prove are outside of the community regime.  The London property is part of the community regime".

45.  At para. 11 of the wife's affidavit sworn on 23rd September, 2010 she says,

"I quite appreciate that my ultimate remedy may lie with the French court, but I would be deeply concerned if pending a decision on my interim application the English court refused to afford me the protection available under the Family Law Act to preserve a secure home for me and our young son".

46.  The husband has filed two affidavits, sworn on 2nd August, 2010 and 14th September, 2010.  He asserts simply that he has no right to occupy the property.  He agrees that the family have sometimes stayed for short periods at the property, but states that this arrangement was brought to an end by the letter I have referred to, dated 10th November, 2006.  He further relies on a letter dated 28th July, 2010, and headed 'WEL.', from his Swiss lawyer, Mr. B, on behalf of WEL.  Mr. B states that he has instructions to assist WEL in securing vacant possession of the property.  It is said,

"As I indicated to you earlier, the property of WEL at [the West London property] is not, and has never been, the matrimonial home of Mr. T or anyone for that matter since it was acquired by WEL ... This property was vacant all the time except for short-term lease ...  At the present, the property has been put on sale.  Nobody is occupying the property.  There is a housekeeper and security company, all paid by WEL.  We are not aware of Mr. T's trips to London, nor where he stays.  We have agreed to store for Mr. T a few boxes.   He will send us a confirmation of where to send them back to him".

47.  Neither the husband's affidavits, nor the letter from Mr. B, indicate who the ultimate beneficial owner of WEL was or is.  Mr. B states simply that WEL is owned by AA Inc., which is in turn owned by AISA and that he has a power of attorney granted by AA Inc. 
48.  Turning now to the French proceedings, the husband initiated the divorce process in France on 26th October, 2006.  The resultant conciliation process concluded on 5th June, 2007 with a non-conciliation order.  The order removed certain provisional measures which had been made in a previous order, dated 25th January, 2007.  The specific provisions of the order, or some of them, were as follows:

"Order the following provisional measures: the spouses will live separately, the husband (at the Paris address), the wife, the home of her choice. Attribute the benefit of the family home with all furniture for free to the husband.  Order the restitution of clothes and personal items.  Fix to €5,000 the monthly subsistence allowance that Mr. T shall pay to his wife under duty relief".

I am obviously reading from a translation.  The husband was authorised to commence divorce proceedings.  In addition, he was ordered to pay a contribution to the maintenance and education of the two minor children at the rate of €1,000 per month each.  The order also records that the wife and children were to move to live in England. 

49.  The husband commenced divorce proceedings in France on 31st August, 2007.  On 3rd February, 2009 the French court pronounced a decree of divorce.  In addition, the order of 3rd February provides for maintenance for the younger child of €1,000 per month and records the father's "commitment to assume the cost of the mother's London residence as long as the child shall attend school in London as a supplementary contribution to the maintenance and education of the children".  The court further ordered in the language of the order "the liquidation and division of the spouses assets" and for that purpose designated "the President of the Inter-District Chamber of Notaries of Paris with the right of delegation to proceed to the liquidation of the respective rights of the parties".  Neither party has initiated any steps as far as I am aware to effect the liquidation and division of their assets.
50.  On 25th January, 2010 the wife lodged an appeal against the divorce judgment.  I was told today, as I indicated at the commencement of this judgment, that her appeal was accepted as being in time by the French Court of Appeal on 16th December, 2010.  Prior to that - and I propose still to refer to them - informal opinions had been obtained from French lawyers for each party, addressing the issue of whether the parties have been, or have not been, effectively divorced under French law.  By letter dated 12th July, 2010 a French lawyer instructed by the wife states that the parties remain married, largely, it appears, because of alleged deficiencies in the steps taken by the husband following the French court's order of 3rd February, 2009 as to service of that order.   It is accordingly asserted on behalf of the wife, or was asserted, that the wife was still entitled to appeal and that as a result the divorce decree is not effective until the appeal has been determined.  
51.  This letter was countered with a strongly worded letter dated 13th September, 2010 from a French lawyer on behalf of the husband to the effect that the parties are indeed divorced.  The letter from the husband's French lawyer also asserts in forthright terms that the French court cannot deal with the occupation of the West London property in that the French courts "cannot dictate an occupation of the house to the owner without consent and acceptance from the owner". 
52.  The letter of 13th September was answered by a letter provided by a French lawyer instructed on behalf of the wife in which it is specifically asserted that a French judge is able (again to use the words of the letter) to "dictate the occupation of [the West London property]". 
53.  I have omitted - and I need to insert - a further reference to the letter dated 12th July, 2010 from the wife's French lawyer.  In para. 2.9 of that letter it is said that the French court can deal with "the right of use of the matrimonial home even if it were to belong to the husband".   It is said that that right can continue to be granted to the wife who cannot be evicted as long as the divorce has not become absolute.  It is also said that the effect of the appeal is to suspend the order of 3rd February, 2009 save for that part of it which deals with the children, both in respect of maintenance and custody.
54.  Turning now to the English proceedings, the wife's application for orders under the Family Law Act was commenced on 16th July, 2010.  In her application it is asserted that,

"The respondent owns the [West London] property through a BVI company, WEL.  The respondent exercises sole control over this company.  Further or alternatively, he is entitled to occupy by way of an occupancy agreement between WEL. and SI.  SI is represented by the respondent".

55.  The wife seeks, pursuant to s.33, a declaration of her right to occupy the property and of her home rights in it; an order requiring the respondent to permit her to enter and occupy the property; and an order suspending the respondent's right to occupy, and prohibiting him or his servants or agents from returning to or entering or remaining in the property.  Further orders were sought under s.40.   Additionally, as explained by Mr. Hale during his oral submissions, in the event that the parties are not spouses but former spouses, identical orders are sought under s.35. 
56.  Without notice occupation and non-molestation orders were made on 16th July, 2010 with the return date of 26th July, 2010 by District Judge Aitken.  By the former order the husband was required to allow the wife sole occupation of the property.  The wife then gained entry to the property by, as I understand it, pretending to be a person interested in purchasing it.  On 26th July the proceedings were adjourned to 2nd August.  Both parties were represented.  The husband gave undertakings in respect of the non-molestation application.  District Judge Gibson gave judgment on 5th August and made an occupation order in favour of the wife to run until 16th September, 2010. 
57.  In the course of her judgment District Judge Gibson acknowledged the primary jurisdiction of the French courts in respect of the divorce and consequential financial claims.  She made the occupation as a short-term order under the Family Law Act which "can only be to govern occupation rights until they are formally resolved by the divorce court and it only needs to be as long as it enables the wife to make application to the French court".  The district judge was satisfied on the evidence that the husband might have an interest in the property sufficient to give him the right to occupy the property and thereby satisfy the provisions of s.30(1)(a) or s.35(1)(a) of the Family Law Act.  She was also satisfied that the evidence was sufficient to establish that the property might have been a matrimonial home, again sufficient to justify an order being made under the Family Law Act.  As she was not making any findings, the district judge was considering on an interlocutory basis whether the evidence was sufficient to justify the granting of an occupation order under the Family Law Act.  She decided, as I have indicated, that it was.  The district judge said at para. 19 of her judgment,

"In doing so I take account of housing needs.  The applicant wife of the family needs somewhere to live.  Whilst they could move back to [the rented] Mews [property] they must leave there on 31st August.  Taken together with s.33(6) I cannot think that the wellbeing of the younger child indicates that moving twice in four weeks would be in his interests.  It appears the respondent is able to pay for housing for the applicant and the younger child and agreed under the French order to do so.   Six weeks will give the parties time to locate a rental property if the applicant decides not to pursue this application in France, and if she does pursue an application in France will enable her to lodge that.  It will also allow the respondent to follow through on his promises in para. 7 of his affidavit in relation to re-housing".

The reference to para. 7 was a statement in the husband's affidavit that he would provide what he considered to be appropriate accommodation for the wife and the younger child.

58.  On 16th September, 2010, at a short hearing, His Honour Judge O'Dwyer continued the occupation order until 11th October, 2010, transferred the application to the High Court and listed it for hearing on 8th October when, as I have explained, the matter came before me.  For reasons given in a short judgment on that day I continued the occupation order until the determination of the substantive application. 
59.  Returning to the French proceedings, on 15th September, 2010 the wife filed submissions with the Court of Appeal in Paris.  The submissions refer to the wife petitioning the magistrate (who deals, as I understand it, with interlocutory matters pending in the Court of Appeal) for the right to occupy The West London property.  It is explained that the wife had decided "to assert her rights" over The West London property and had obtained an occupation order from the English court.  She states that the English ruling is only a temporary one and that "the English judge invited (the wife) to present the matter to the French judge, given the divorce proceedings were pending in France".  This, as I have indicated, is a reference to District Judge Gibson's judgment. 
60.  In the submissions filed on behalf of the wife with the Court of Appeal it is said,

"As her preferred remedy Mrs. T is therefore requesting that she be awarded the right to occupy the jointly owned property located at [the West London property] at the expense of her husband pursuant to his duty of support.  She is also requesting, given that Mr. T no longer has to pay the rent on the London home of his wife and child as part of his contribution to the upbringing and keep of the child, that the maintenance payments part of such contribution be increased to take account of the sums that the respondent has hitherto been paying pursuant to that obligation.   In the alternative and if contrary to all expectations the judge responsible for directing preparations for trial were to refuse to grant her the right to occupy [the West London property] pursuant to the duty of support, the appellant requests that the occupation of this property be awarded to her pursuant to the father's contribution to the upbringing and keep of the younger child ... 

It is therefore inconceivable in these circumstances that Mr. T should have the benefit of living free of charge in the Paris property that was the matrimonial home and that his wife should not be awarded the right pursuant to her husband's duty of support to live free of charge in the property at [the West London property]".

This is just after a paragraph in which it is asserted, as per the October 2008 schedule, that the husband's resources total over €97 million.  The wife, in her submissions to the French Court, seeks in addition the appointment of an expert to plan the liquidation of the parties' matrimonial shared property.

61.  On 22nd September, 2010 the wife's French lawyers wrote a long letter explaining the applications which had been made to the Court of Appeal, including the application that the wife be given free use of The West London property until the conclusion of the divorce proceedings.  The application is said to be based on two grounds, the first being, as I have indicated the husband's alleged duty to maintain the wife as his spouse.  The letter says,

"Because Mr. T has a huge fortune at his disposal, and as a result of the fact that the first judge in France granted him the free use of the Paris matrimonial home, there is no reason why a similar decision should not be granted to Mrs. T.  In fact, the granting of the free use of the Paris home to Mr. T was a strange decision because under French law it effectively means that Mr. T is paying him maintenance.  Due to the difference in wealth between Mr. and Mrs. T this is a nonsense".

The letter then refers to the second ground of the application as being by way of child support. 

62.  The letter of 22nd September deals with a number of additional points, including that the property comes within the community of property regime because it is owned by a company which in turn belongs to the husband.  In addition, it is again asserted that a French judge can "dictate" the occupation of the West London property and thereby award the use of the property to the wife because it is part of their joint (community) property.  It also makes reference to the fact that in the non-conciliation order the use of the property in France, which was also held through a corporate structure, was given to the husband without any reference apparently to the company's consent in that order (this is in answer to the assertion on behalf of the husband that such consent is required).
63.  In response to the wife's submissions to the Court of Appeal a lawyer on behalf of the husband filed very short submissions contending simply that the appeal was out of time and should be dismissed.   The French Court of Appeal first heard the matter on 2nd November.  It was adjourned, as I understand it, to 2nd December, with the decision being given on 16th December, as I have already described.  
64.  Turning now to the parties' respective submissions.  Mr. Glaser, on behalf of the husband, submits that I must impose an automatic stay of the wife's application under the Family Law Act pursuant to the provisions of Council Regulation (EC) No 44/2001 (Brussels I) and/or Council Regulation (EC) No 2201/2003 (Brussels II R).  If these provisions do not apply Mr. Glaser submits alternatively that I should grant a discretionary stay under those regulations.  In addition he submits that an application for an occupation order is not an application for "provisional including protective measures" and, accordingly, that I have no jurisdiction to make such an order in this case. 
65.  In my view, I can dispose quickly of Mr. Glaser's submissions based on Brussels II R.  The scope of the regulation is made clear in part by paras. 8 and 11 in the Preamble: 

"8.  As regards judgments on divorce , legal separation or marriage annulment, this Regulation should apply only to the dissolution of matrimonial ties and should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures. …

11.    Maintenance obligations are excluded from the scope of this Regulation as these are already covered by Council Regulation No 44/2001. The courts having jurisdiction under this Regulation will generally have jurisdiction to rule on maintenance obligations by application of Article 5(2) of Council Regulation No 44/2001".

In my judgment an application for an occupation order under the Family Law Act is not an application or claim that is within the scope of Brussels II R at all.  Brussels II Revised, as it states, is confined to proceedings dealing directly with the dissolution of matrimonial ties, such as divorce, judicial separation, or similar proceedings. 

66.  Turning then to Council Regulation EC 44/2001 (Brussels I).  Insofar as relevant this regulation applies to maintenance.  I say 'insofar as relevant'.  I will turn to one subsidiary issue later in this judgment which arises because by Article 1.2(a) the regulation specifically does not apply to "the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship …".  The important words in that article being 'rights in property arising out of a matrimonial relationship'. 
67.  In summary, in respect of this regulation Mr. Glaser submits (a) that the wife is applying for maintenance, and (b) that her application is not for a provisional or a protective measure.  Accordingly, he submits that I must dismiss the application as there is no, or no sufficient, jurisdiction. 
68.  Section 9 of the regulation is headed "Lis pendens - related actions".  Article 27 provides,

"(1)  Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 

(2)   Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court".

Article 28:

"(1) Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings. 

(2) Where these actions are pending at first instance, any court other than the court first seized may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

(3) For the purposes of this Article actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings".

Article 31:

"Application may be made to the courts of a Member State for such provisional, including protective measures, as may be available under the law of that State even if under this Regulation the courts of another Member State have jurisdiction as to the substance of the matter".

69.  As I have indicated, Mr. Glaser submits that in this case the application for an occupation order is, in effect, an application for maintenance because the wife is seeking the provision of a property, albeit an alleged matrimonial home, as a home rather than seeking to protect an existing occupation of a property.   In support of his submissions he relies on the Court of Appeal's decision in Moore v. Moore [2007] 2FLR 339.  In the judgment of Lord Justice Thorpe he said, starting at para. 70,

"Régimes matrimoniaux" (now translated since the 1978 Accession Convention as "rights in property arising out of a matrimonial relationship") were excluded from the 1968 Brussels Convention because of great differences in the substantive matrimonial property law between the original Member States, but maintenance was included because most of the original Member States were parties to the Hague Convention of 1958 on the recognition and enforcement of decisions relating to maintenance obligations in respect of children, and the New York Convention of 1956 on the recovery abroad of maintenance ...

71. When the United Kingdom and Ireland acceded to the Brussels Convention, it was recognised that under their law there was no legal concept equivalent to "rights in property arising out of a matrimonial relationship" but that property rights between spouses were governed by the general law.  The Brussels Convention was not amended to deal with this, but the Schlosser Report on the Accession Convention ([1979] OJ C59) states the position which was agreed in the negotiations (para 50):

'The mutual rights of spouses arising from 'matrimonial régimes' correspond largely with what are best described in English as 'rights in property arising out of a matrimonial relationship'.  Apart from maintenance matters property relations between spouses which are governed by the differing legal systems of the original Member States otherwise than as 'matrimonial régimes' only seldom give rise to court proceedings with international aspects.

Thus the following can be said in respect of the scope of point (1) of the second paragraph of Article 1 as far as 'matrimonial régimes' are concerned:

The Convention does not apply to the assumption of jurisdiction by United Kingdom and Irish courts, nor to the recognition and enforcement of foreign judgments by those courts, if the subject matter of the proceedings concerns issues which have arisen between spouses, or exceptionally between a spouse and a third party, during or after dissolution of their marriage, and which affect rights in property arising out of the matrimonial relationship. The expression 'rights in property' includes all rights of administration and disposal – whether by marriage contract or by statute – of property belonging to the spouses.'

72. Article 5.2 of the 1968 Convention was, however, amended to deal with the case where maintenance is awarded in divorce proceedings, and the amended Brussels Convention (and now Brussels I) gave jurisdiction in matters of maintenance to the Member State where there were proceedings concerning the status of a person".

Lord Justice Thorpe then summarises that Brussels I does not apply to "rights in property arising out of a matrimonial relationship" but does apply to matters relating to maintenance and that Brussels II did not apply to "property consequences of the marriage", maintenance obligations or any other ancillary measures.  He then refers to Brussels II Revised.

70.  Next I propose to refer to the passages in Thorpe LJ's judgment which appear under the heading "The Meaning of Maintenance".

"76.  The Schlosser Report (paras 93 et seq) makes it clear that the concept of maintenance does not require that the claim must be for periodic payments, and that the mere fact that the courts in the United Kingdom have power to order not only periodic payments but also the payment of a lump sum does not prevent the proceedings from being treated as a maintenance matter. But it is difficult to distinguish between claims for maintenance on the one hand and claims for damages and the division of property on the other. In continental Europe a motivating factor in assessing the amount of maintenance is to compensate an innocent spouse for the loss of matrimonial status. The Report points out that English law does not make a distinction as to whether payments ordered by the court are intended as damages or as maintenance. The maintenance nature of the payment is likely to predominate in relation to children. As between spouses, a division of property or damages may well be the underlying factor. Where both spouses are earning well, payment of a lump sum can only serve the purpose of a division of property or compensation for non-material damage. In that case the obligation to pay is not in the nature of maintenance. If payment is in pursuance of division of property, the Brussels Convention does not apply at all. If it is to compensate for non-material damage, there is also no scope for the application of Article 5.2.

Thorpe LJ then refers to Van den Boogard v. Laumen [1997] ECR I-1147 which dealt with the application of the Brussels Convention to English lump sum orders.  Continuing,

"78.  After referring to the passages from the Schlosser Report, Jacobs AG expressed the opinion (para 43) that where both spouses are earning well, payment of a lump sum can only serve the purpose of a division of property or compensation for non-material damage, in which case the obligation to pay is not in the nature of maintenance. He said (at para 62) that it might be arbitrary to try to draw a clear distinction with regard to a given order between an equitable division of assets and maintenance, and consequently, in keeping with the European Court's readiness to develop an autonomous interpretation of Convention terms, it might in some cases be necessary to look for the essential object of the order. Later in his opinion he said:

'73. Turning to the criteria for the categorisation of particular lump sum orders, it is clear that, at one end of the spectrum, where the recipient has no earning power and the lump sum is awarded in the context of a 'clean break' in lieu of periodical payments for the recipient spouse, at least part of that sum must be in the nature of maintenance. This is expressly recognised by Schlosser; indeed he goes further, and states, O.J. 1979 C. 59, p. 102, para. 93 … that the transfer of property on divorce may in certain circumstances be in the nature of maintenance. The Commission makes the same point, noting that a transfer of property is not automatically excluded as such from the scope of the Convention, but only to the extent that it is not in the nature of maintenance. The Commission refers to the view it expressed in its written observations in de Cavel (No. 2) [1980] ECR 731, 736, to the effect that if

"a payment fixed in the course of divorce proceedings is intended to ensure the support of the spouse who is in need, this is a matter of a maintenance obligation within the meaning of the 1968 Convention."

The Commission rightly concludes that a lump sum payment or a transfer of property will, if it has that objective, be in the nature of maintenance notwithstanding its form ...'

The lump sum as a division of property

80. At the other end of the spectrum, where both parties are earning well, an order awarding a lump sum will frequently be intended as a division of assets rather than maintenance in any sense; at that extreme … it will concern 'rights in property arising out of a matrimonial relationship' and hence be unenforceable under the Convention."

79.  The European Court ruled:

"20. ...[D]ivorce courts in England and Wales have a wide discretion to make financial provision. They may, in particular, order periodical payments or lump sum payments to be made and ownership in property belonging to one spouse to be transferred to the former spouse. Thus, they have the task of regulating, in a single decision, the matrimonial relationships and maintenance obligations arising from dissolution of a marriage.

21. Owing precisely to the fact that on divorce an English court may, by the same decision, regulate both the matrimonial relationships of the parties and matters of maintenance, the court from which leave to enforce is sought must distinguish between those aspects of the decision which relate to rights in property arising out of a matrimonial relationship and those which relate to maintenance, having regard in each particular case to the specific aim of the decision rendered.

22. It should be possible to deduce that aim [the aim of the order] from the reasoning of the decision in question. If this shows that a provision awarded is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, the decision will be concerned with maintenance. On the other hand, where the provision awarded is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under the Brussels Convention. A decision which does both these things may, in accordance with article 42 of the Brussels Convention, be enforced in part if it clearly shows the aims to which the different parts of the judicial provision correspond".

At this point Mr. Glaser interpolated that the application for the right to occupy the property in this case is clearly an award "designed to enable one spouse to provide for … herself". 

71.  Returning to Lord Justice Thorpe's judgment in para. 80 he says,

"The ruling by the European Court was that a lump sum payment was to be regarded as maintenance if its purpose was to ensure the former spouse's maintenance. Although its formulation differs slightly from that of Jacobs AG (who spoke of the "essential object" of the order for payment), the European Court expressly approved much of Jacobs AG's opinion. The following propositions may be derived from this decision: first, whether a claim is for maintenance depends upon an autonomous interpretation of the term, and the label given to the claim by national law is not decisive: second, payment of a lump sum or transfer of property may be in the nature of maintenance if it is intended to ensure the support of a spouse; third, payment of a lump sum or transfer of property which serves only the purpose of a division of property or compensation for non-material damage is not in the nature of maintenance; fourth, a payment or transfer of property intended as a division of assets will concern "rights in property arising out of a matrimonial relationship"; fifth, whether a claim relates to maintenance will depend on its purpose, and in particular whether it is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, or where the capital sum set is designed to ensure a predetermined level of income; sixth, where the provision is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under Brussels I".

At para. 86 Lord Justice Thorpe says,

"But in determining whether the application relates to maintenance it is necessary to consider the terms of the application in so far as it sheds light on the purpose of the application".

Mr. Glaser submits that the Family Law Act application falls squarely within para. 80 because occupation orders made under the Family Law Act are "intended to ensure the support of a spouse".  The provision of a home per se, he submits, falls within the definition of maintenance. 

72.  Mr. Glaser next turns to address the nature of the application following the reference by Lord Justice Thorpe to the need to consider the terms of the application.  He submits that, in this case, the purpose of the application, being provision of a home, falls within the definition of maintenance.  Mr. Glaser relies on the following passages in the wife's evidence as demonstrating that her claim is a claim for maintenance. 

In para. 11 of her affidavit of 23rd September, which I have already quoted in part, she says,

"I found myself fighting on all fronts in August.  I know that the respondent has set out to put the maximum possible pressure on me in every single possible way.  I quite appreciate that my ultimate remedy may lie with the French court, but I would be deeply concerned if pending a decision on my interim application the English court refused to afford me the protection available under the Family Law Act to preserve a secure home for me and our young son".

Mr. Glaser also relies on the content of para. 17 of this affidavit, some of which I have also already referred quoted, 

"Any efforts that I might have made to speed the process up have been hampered by the respondent's belligerent attitude in bringing multiple proceedings against me.  The fact that I have no funds due to the respondent's failure to pay proper maintenance, the vacation in France during the month of August and the respondent's threat to abduct our younger child.  Notwithstanding all this, the French proceedings in relation to an interim occupation order are now underway.  The respondent wishes to deny me my rights and has gone to extreme lengths to put pressure on me to back down".

In addition, he referred me specifically to para. 19 of the wife's affidavit of 8th September, 2010 in which she said, in respect of the property that the husband had [the AV rented property] in London,

"Quite apart from the fact that moving to this property places the children and me in a vulnerable position, the accommodation is nothing like the standard of that we are used to".

73.  Mr. Glaser then turns to the French proceedings and submits that, in them, the wife is seeking the identical relief or remedy which she seeks from this court.  He submits that it is part of her (maintenance) claim in France as demonstrated, for example, by the letter from her French lawyer of 22nd September, 2010 and the submissions made on her behalf to the French court from which I have already quoted. 
74.  Relying on all these matters, Mr. Glaser submits that in this case the wife's application under the Family Law Act is effectively an application for maintenance as can be seen, for example, from her assertion in France that the husband has an obligation to maintain her as his wife or alternatively an obligation to support their minor child.  Further, he relies on the fact that the proceedings relate to the same property.  Accordingly, he submits that Article 27 of Brussels I applies as the proceedings involve the same cause of action and the same parties.  Alternatively, he submits that they are related actions in that they are so closely connected that it is expedient for them to be heard and determined together pursuant to the provisions of Article 28. 
75.  In respect of Article 28, Mr. Glaser relies on the Court of Appeal decision of Prazic v. Prazic [2006] 2 FLR 1128.  In that case, while divorce and financial proceedings were continuing in France, a wife brought proceedings in England under the Trusts of Land & Appointment of Trustees Act 1996.  The Court of Appeal decided that the proceedings in France and England were related actions, given the risk of irreconcilable judgments in the two sets of proceedings and since "the wife's application under TOLATA was plainly strategic and superfluous to the French ancillary relief proceedings".  The English proceedings were stayed.  
76.  In passing, I note that the European Court of Justice in the case of Webb v. Webb, C-294/92, [1994] QB 696, rejected the son and the Commission's argument "that the test for applying Article 16(1) is the plaintiff's ultimate purpose" which in that case was said to be to secure ownership of a flat.  This was rejected on the basis that the focus of the Article was not on the purpose of the proceedings, but on whether or not the proceedings in that case concerned rights in rem in immoveable property.
77.  Returning to Prazic, in para. 16 of his judgment Lord Justice Thorpe rejected the submission that the French and English proceedings were the same causes of action.  In para. 18 he accepts the contention that there is a risk of irreconcilable judgments. 

"18.  In any event, it seems to me that here there is the risk of irreconcilable judgments, given that the wife's application for financial provision in France is fundamentally focused on the husband's ownership of the London and Swiss properties, and given that the object of the TOLATA application is to achieve an equitable share".

In the latter part of his judgment Lord Justice Thorpe makes a number of general comments:

"26. Of course some European jurisdictions will be regarded as a happy land for an applicant or, put the other way, a bad land for a respondent.  No doubt this wife would have preferred her financial provision to have been determined by a London judge.  No doubt that was the basis of the issue of her competing divorce proceedings in this jurisdiction.  But the issue of TOLATA proceedings, once her petition was stopped, is to be characterised in my judgment as plainly strategic and plainly superfluous to the well-established French ancillary relief proceedings.

27. If other reasons were required for my firm conclusion that the discretion must be exercised in favour of a stay, I would point to the risk of substantial waste of costs and the equal risk of unnecessary stress to the litigants if two sets of proceedings are litigated instead of one, and those two sets in different jurisdictions. The proportionality between the costs in ancillary relief proceedings and the amounts in issue are, so far as this jurisdiction is concerned, a matter of continuing concern, certainly to judges and probably to practitioners. It is very important to impose judicial restriction to curtail unnecessary proceedings.

28. My last reason, if further reason be required, is that the whole force of developing European legislation in the family law field is to impose clear and simple rules to establish the primary jurisdiction and to ensure that once that primary jurisdiction is established it is given the fullest support in the discharge of its consequent responsibilities. We have recognised the primacy of the French jurisdiction by the stay imposed upon the divorce proceedings initiated by the wife in this jurisdiction. It would be quite inconsistent with the objectives and underlying policy of the Brussels II Revised were we now to say in the exercise of the discretion, that it was perfectly in order for the wife to bring civil proceedings in this jurisdiction which only thinly disguise their true competitive objectives".

78.  Relying on this authority, Mr. Glaser submits that the proceedings in this case are sufficiently related to bring them within Article 28 and that, given the circumstances, I should exercise my discretion by granting a stay. 
79.  Finally, Mr. Glaser relies on Article 31.  In this context he relies on the Court of Appeal decision in Wermuth v. Wermuth [2003] 1FLR, 1029.  In that case it was held that an order for maintenance pending suit was not a protective or a provisional measure.  Quoting from Thorpe LJ's judgment:

"22.   I come now to the rival submissions. Mr Mostyn took us through the terms of the Convention on the enforcement of judgments in civil and commercial matters (Brussels I) (both in its old form as adopted by the then six member states in 1968 and in its modern replacement, namely Council Regulation No 44/2001) and particularly Articles 21 and 24 of the Convention and Articles 27 and 31 of the Regulation which are the provisions matching Articles 11 and 12 of Brussels II.  The relevance of the mirror provisions in Brussels I is twofold: first Brussels I and not Brussels II is concerned with jurisdiction and enforcement in relation to maintenance.  Second the report of Dr Borras confirms that Article 12 was modelled on Article 24 of the 1968 Convention and accordingly decisions on the construction of Article 24 are directly in point.  He prefaced his review of decided cases by reference to a published work of my lord, Lawrence Collins J, (The Civil Jurisdiction and Judgments Act 1982: Butterworths 1983) where, at page 99, critical comment is directed to excessive claims to jurisdiction founded on the provisional measures exception.  He also derives support from Jaffey on the Conflict of Laws second edition at 139 where the authors state that Article 31 of the Brussels I Regulation: 

"Applies to measures which are intended to preserve a factual or legal situation in one member state so as to safeguard rights which are the subject matter of litigation in the court of another member state which has jurisdiction as to the substance of the matter."

23. On the same page the authors write:

"A measure does not come within the scope of Article 31 if its provisional character is not guaranteed; a court order requiring the defendant to make an unconditional interim payment cannot be a provisional measure for the purposes of Article 31 unless, if the claimant is unsuccessful, the defendant can obtain repayment."

24. The authorities for these propositions are first Reichert v Dresdner Bank AG (No 2) [1992] ECR 1-2149. In that authority Mr Mostyn relies upon paragraphs 32 and 34 of the judgment to this effect:

"32. The court has already declared in the judgment in Case 143/78 De Cavel v De Cavel [1979] ECR 1055, at paragraph 8, that as provisional or protective measures may serve to safeguard a variety of rights, their inclusion in the scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect.  It added, in paragraph 9 of that judgment, that the provisions of Article 24 of the Convention cannot be relied upon to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded therefrom.

34. The expression 'provisional, including protective, measures' within the meaning of Article 24 must therefore be understood as referring to measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter."

25. The authority for the second proposition is Van Uden Maritime BV v Firma Deco-Line [1998] ECR 1-7091. From this authority it is sufficient to cite only paragraphs 46 and 47:

"46. However, an order for interim payment of a sum of money is, by its very nature, such that it may pre-empt the decision on the substance of the case. If, moreover, the plaintiff were entitled to secure interim payment of a contractual consideration before the courts of the place where he is himself domiciled, where those courts have no jurisdiction over the substance of the case under Articles 2 to 18 of the Convention, and thereafter to have the order in question recognised and enforced in the defendant's State, the rules of jurisdiction laid down by the Convention could be circumvented.

47. Consequently, interim payment of a contractual consideration does not constitute a provisional measure within the meaning of Article 24 unless, first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, second, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the courts to which application is made."

26. Mr Mostyn also referred us to the earlier case of De Cavel principally since it was authority in relation to matrimonial property. His reliance is on paragraph 8 containing the following short citation:

"As provisional protective measures relating to property – such as the affixing of seals or the freezing of assets – can serve to safeguard a variety of rights, their inclusion in the scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect."

27. On those authorities Mr Mostyn observes that had the wife applied under Article 31 of Regulation Brussels I (the regulation concerned with maintenance matters) these authorities would have been fatal to her claim. How then can she fare better by relying on Article 12 of Brussels II?

28. In summary Mr Mostyn submits:

i) An application for maintenance pending suit clearly cannot be categorised as a protective measure.

ii) Nor can it be categorised as a provisional measure: the wife is penniless and would be quite unable to repay even the first instalment which would have fallen due on 2 December but for this court's stay.

iii) Article 12 is restricted to 'urgent cases'. There was no evidence of urgency in this case and the wife had failed to advance any reason why she had not moved the German court for interim maintenance when present and represented at the hearing on 10 October. The only inference is that her application to the English court had nothing to do with urgency but was founded on a perception that she would be awarded more in London than she would be in Mainz".

In summary, Article 31 applies to measures which are intended to preserve a factual or legal situation in one Member State so as to safeguard rights which are the subject of litigation in the court of another Member State which has jurisdiction as to the substance of the matter.

80.  Building on his earlier submissions, Mr Glaser contends that the wife's application under the Family Law Act is, as I have described, essentially an order for maintenance and as such cannot be within the scope of permitted measures under Article 31. 
81.  Turning to Mr. Hale's submissions, Mr. Hale's simple response to Mr. Glaser's principal submission is that an application for an occupation order is not an application for maintenance.  It is, he submits, an order for the protection or preservation of matrimonial home rights, which is a claim distinct from one for maintenance.  He also relies on the authority of Moore v. Moore as demonstrating that maintenance is concerned with the provision of a financial award which may take the form of periodical payments or a lump sum, or possibly even a transfer of property, but in any case involves the transfer of resources from one party to the other.  He submits that the language used - in particular, "payment" and "amount" - supports his argument that maintenance claims within Brussels I do not include applications for an occupation order. 
82.  As for Article 28, Mr. Hale submits that the proceedings are not related, again because the English proceedings are concerned only with matrimonial home rights.  This submission clearly cannot apply to all of the wife's initial application because it included an application for an order under s.40 which includes financial provision. 
83.  As for Mr. Glaser's submissions in respect of Article 31, Mr. Hale submits that an occupation order, or orders made under the Family Law Act, are measures which are intended to preserve a factual or legal situation and fall precisely within the provisional nature of measures permitted under Article 31. 
84.  Turning to my conclusions, which I can state quite briefly after a relatively long judgment and first, dealing with Article 27.  In my judgment the proceedings in France and the proceedings in England do not involve the same cause of action.  The nature of the proceedings in France as relied upon by Mr. Glaser constitute an application for maintenance.  The proceedings in England are not an application for maintenance, but an application under the Family Law Act for the protection of matrimonial home rights, in part by the grant of an occupation order.  They are, simply stated, different causes of action. 
85.  In his submissions, Mr. Glaser has focused on the effect or object of the application under the FLA and submits that in essence it has the object of procuring for the wife the provision of a home, albeit a former matrimonial  home.  I appreciate that this latter point is not accepted by the husband, but the Act only applies if the relevant property is, or at any time has been, such a property as defined by the Act. So, for the purposes of this judgment I proceed on the basis that the wife may well be able to establish that the West London property is, or has been, a matrimonial home.
86.  However, the object of the application is only a part of the analysis required for the purposes of deciding whether proceedings involve the same cause of action.  In order to determine the nature of a cause of action a court has to look at the facts and the rule of law relied on as the basis of the action.  These words appear in an authority not referred to by counsel during the course of the hearing, but which is clearly a leading authority - namely, The Tatry [1999] QB 515, 535 [39].  On this topic see also Dicey, Morris & Collins, The Conflict of Laws (14th edition), paras. 12-053 to 12-055.
87.  The word 'maintenance' is, in my judgment, directed towards financial awards, whether by way of periodical payments, lump sum, or property transfer which have the purpose of enabling one party to provide for his or her needs.  It is not directed towards the occupation of a matrimonial home under an order granted by the Family Law Act.  In my judgment an application for an occupation order is a different cause of action, applying the approach referred to above.  I also consider it to be an application outside the scope of Brussels I.  I will return to this latter issue in a moment because this is only my initial view for reasons I will explain.
88.  Turning to Article 28 - namely, related actions - by this Article actions are deemed "to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments".  This provision is to be given a broad interpretation so that it covers all cases where there is a risk of conflicting decisions.  As I have already noted, as a result of District Judge Gibbons' comments (perhaps invitation) the wife has applied in France for the right to occupy The West London property.  The wife's French lawyer states the French courts can make such an order; on the other hand, the husband's French lawyer appears to assert that the French courts cannot make such an order.  Accordingly, it is not at present clear whether the French courts can directly address the issue of the occupation of the West London property.  Further, even if the husband is entitled to rely, in support of his arguments under this Article, on applications which the wife has made in France pursuant to the invitation of this court, this would clearly be a relevant factor when I come to decide whether to stay or dismiss the FLA proceedings.  I also return to this issue shortly.
89.  In respect of the claim for maintenance, it appears that it might be open to the French court to make an award of maintenance which includes the costs of accommodation, whether under the 2007 order or the 2009 order.  However, this still leaves open the question of whether the proceedings under the Family Law Act are within the scope of the Regulation at all.  As I have indicated in paragraph 87, I now return to this issue. This issue was the subject of very little attention during the course of the hearing.  The crucial, or essential question, is whether an application for an occupation order, or an application under the Family Law Act, is an application dealing with "rights in property arising out of a matrimonial relationship". 
90.  The reason that this is an essential question is because if the application does concern, or is a cause of action in respect of, rights in property arising out of a matrimonial relationship, then it is specifically excluded from the Regulation by Article 2A.  I remind myself that matrimonial home rights, if they exist, are a charge on the beneficial estate or interest which the other party has in the relevant property.  My instinctive response is that occupation orders - or, put more broadly, applications for the protection or enforcement of matrimonial home rights under the Family Law Act - are applications concerning rights in property arising out of a matrimonial relationship.  However, because the point was not fully argued during the course of the hearing, for the purposes of this judgment I propose to assume that such an application is not excluded from the provisions of Brussels I. 
91.  If the application for an order under the Family Law Act is not excluded from the provisions of Brussels I, the next question I have to consider is whether or not the proceedings in this case are related actions.  I have briefly touched on this issue in paragraph 88 above.  This requires me to consider, in particular, whether there is a risk, broadly stated, of conflicting decisions.  Again, I propose to deal with this issue briefly because, even if they are related actions, I must also decide whether to exercise my discretion by staying or dismissing the proceedings.  The purpose of these provisions, as I have indicated several times, is to avoid the risk of irreconcilable judgments in the sense of judgments which may contain conflicting decisions.  At present, because of the uncertain scope of the French proceedings, it is not clear whether there is any such risk.  This should become clearer once the proceedings in the Court of Appeal in Paris have developed and, in particular, once that Court has considered the applications made to that court as set out in the wife's submissions. 
92.  At present, therefore, I do not consider that I should seek to pre-empt the decision of the French court by staying or dismissing the wife's application under the Family Law Act.  Although, in fact, her occupation is, to a certain extent, protected because the current possession proceedings may take some time to resolve, I do not consider that this justifies my staying or dismissing her application.  I do not agree with the categorisation of the wife's actions as 'strategic', as submitted by Mr. Singleton, QC, and as effectively adopted by Mr. Glaser.  In my view, the wife issued the application properly to procure the English court's decision on whether she is entitled to an occupation order in respect of the West London property under the Family Law Act.
93.  In case I am wrong on this issue I next propose to consider Article 31.  As referred to in paragraph 79 above, provisional, including protective measures are measures "which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights, the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter".  I have already dealt with and rejected Mr Glaser's submission that the wife's application for an occupation order is an application for maintenance.
94.  Further, and simply stated, an occupation order is, in my judgment, clearly a measure intended to preserve and protect a spouse, or former spouse's, rights - namely, in the circumstances of this case the wife's matrimonial home rights in respect of The West London property.  Whether the wife has such rights is in dispute because I have not yet determined the substantive application.  However, for the purposes of this judgment I again consider that I should presume that she has such rights.
95.  There is also a dispute as to whether the French courts have jurisdiction to make an order concerning the West London property.  However, for the purposes of considering the effect of Article 31, I consider that, at this stage of the proceedings and for the purposes of determining the husband's preliminary application, I should presume that the French court does or at the very least may well have such jurisdiction.  In my view, an occupation order is an order which is specifically designed to preserve and protect a factual and legal situation - namely, the matrimonial home rights of a spouse or former spouse – pending final determination by the French court.  If the court considers, in its discretion, that an effective order should be made to protect such rights, it is an order which, in the circumstances of this case, is clearly intended to preserve a factual and/or legal situation, and accordingly would be an order which falls within the measures permitted by Article 31.

(Proceedings continued)

96.  The final application I must deal with is an application made on behalf of the husband for permission to appeal my essentially interlocutory judgment, made in the course of these proceedings for an occupation order, that I am not required by the provisions of Brussels I and/or Brussels II to decline to exercise any jurisdiction to make an order in the wife's favour under the Family Law Act. 
97.  Two matters are relied upon by Mr. Glaser in support of this application.  First, that the question of whether or not the wife has matrimonial home rights is very different from the making of an occupation order.  He submits, therefore, that I have approached the matter from the wrong perspective in respect of Articles 27 and 28.  Secondly, he submits I was wrong to decide that an occupation order is a measure permitted by Article 31; i.e. a provisional and/or protective measure.
98.  I reject his application for permission to appeal.  In my view an occupation order is part of the structure of the Family Law Act which has been designed by Parliament as the means by which matrimonial home rights are protected.  Under s.33, which is probably the applicable provision to these proceedings, a person can apply for an occupation order if they have matrimonial home rights in relation to the relevant property.  The case has been argued on the basis that the wife has matrimonial home rights because the husband is entitled to occupy the dwelling house by virtue of a beneficial estate or interest or contract.  Accordingly, in my view, occupation orders form part of the structure designed by Parliament to afford spouses matrimonial home rights protection. There may be other arguments in respect of 33(1)(a), but they have not yet been deployed.
99.  Insofar as the second ground is concerned - that an occupation order is not within Article 31 - in my view I am right to conclude that, in the circumstances of this case, an occupation order is a measure which is within Article 31. 
100.  I reject the application for permission to appeal.