Case summary: Vasilyeva v Shemyakin [2019] EWHC 932 (Fam)

Williams J was concerned with an application for leave to issue a claim under s13 Matrimonial and Family Proceedings Act 1984, which would enable the applicant to apply for financial relief in England and Wales following a divorce abroad. The case offers further guidance on the meaning of ‘substantial ground’, which is the test for granting leave under s13(1) MPA 1984.

H and W were both of Russian origin. They married in Moscow on 26 April 2002, and spent the majority of their married lives there. They had one daughter, born on 22 January 2005.

In 2011, H was arrested on suspicion of fraud against the Bank of Moscow. It was not clear to the English court what were the precise details of the allegations, or even whether H had been charged, convicted in his absence or sentenced. It was common ground however that if he were to return to Russia, H would likely be imprisoned. Following H’s 2011 arrest, he came to the UK and claimed political asylum, while W and their daughter remained in Moscow until 2014, at which point they were granted visas to live in the UK. There was a dispute as to what extent W had ever lived in London. She divided her time between London, Russia and Tenerife.

The parties separated in September 2016, at which point W left London and moved to Tenerife, while H and their daughter remained in the UK. H petitioned for divorce in Moscow on 19 May 2017. W responded by issuing her own petition at the Central Family Court on 8 June 2017, asserting that H was habitually resident in England. H gave undertakings to the English court not to bring forward or accelerate the Moscow case in June 2017, and a Hemain injunction preventing H from progressing the divorce in Russia was made in July 2017. Despite this, there was a further hearing in Russia and a decree of divorce was granted there on 27 July 2017. H issued a financial remedies application in Moscow within a week of the decree. Williams J noted that although this ‘was not a breach of the 'Hemain' injunction […] one might reasonably conclude that it was far from compliant with the spirit of the process that Roberts J had put in train.’

Financial remedies proceedings in Russia eventually ended in what appeared to be an agreed order, although there was a lack of certainty on this point. W claimed that the final order left her with £1.64 million of marital assets and H with £1.93 million. Adding in non-marital assets, W claimed to be left with £1.68 million and H with £3.64 million. H claimed however that W had received £2.21 million of marital assets to his £1.93 million, and including non-marital assets, W received £3.131 million and the £3.64 million.

W issued her application for leave to issue a claim under Part III MFPA 1984 on 7 December 2018.

Williams J was unable in the time available to him to explore fully the nature of financial remedies proceedings in Russia, but did comment that Russian courts did not appear to apply a general rule of equal division, and did not seem to have a general discretion as an English court would. Williams J was of the view that the Russian court does not as a matter of course require full and frank disclosure of all assets of both of the parties. Finally, he noted that the Russian court divides assets, rather than values.

Williams J heard submissions from both parties on the s16 factors, but expressed concerns that he was being asked to consider matters with a level of detail that was inappropriate for this stage of proceedings, and better left to a full hearing, commenting that ‘is a danger that one commences the sort of detailed (or rigorous) evaluation that it is intended should take place once leave has been granted.’

Williams J also considered the meaning of ‘substantial ground’. The starting point for any consideration of what was meant by ‘substantial’ was the judgment of Lord Collins in the leading authority of Agbaje v Agbaje [2010] 1 AC 628, where it was said that ‘the threshold is not high, but is higher than "serious issue to be tried" or "good arguable case" found in other contexts. It is perhaps best expressed by saying that in this context "substantial" means "solid".’ Following Traversa v Freddi [2011] 2 FLR 272, CA, Williams J stated that it was inappropriate to gloss ‘substantial’ as meaning ‘more than 50%’. Instead, he reminded himself that in interpreting ‘substantial’ he should consider whether or not ‘there is something which can sensibly be said to amount to more than substantial issues of fact or law that require determination, more than good arguments, that the application raises substantial issues which as a matter of justice require determination, and that the application is not wholly unmeritorious or capable of being determined by knockout blow.’

After consideration of various arguments, including the fact that H had been settled in England for 8 years, Williams J concluded that leave should be granted. Although none of W’s arguments may be sufficient on their own to provide a substantial or solid ground, when taken together, Williams J considered that the wife had demonstrated that there was a substantial ground for leave to be granted.

Kate Strange, Pupil, 1 Hare Court