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A practical guide to “destructive litigation”

On the same day as the law on “no fault” divorce came into force in England & Wales, a High Court judge in London observed that dispute resolution is made all the more difficult by parties incapable of agreement.  

Background

The husband and wife met in England in 2000 and married in New Zealand six years later. They retained dual UK / New Zealand citizenship, living in “a valuable property” in London, which the husband had inherited in 1994. 

The couple have two children (aged 14 and 13). Although there have been “significant disputes” over their care, the children are currently subject to a shared care regime.

In 2009, the family relocated to New Zealand. The marriage broke down in 2011, and the husband and wife have been embroiled in “their destructive litigation” ever since. In 2013, the marriage was dissolved in New Zealand.   

judge in New Zealand ruled, in 2018, that she had no jurisdiction in respect of the London property, which the husband contended was subject to a debt to his mother of £500k. The judge determined that the wife was entitled to 37% of the husband’s NHS pension with the total relationship debt of NZ$1.2m to be divided equally. 

The net result was that the wife was ordered to pay NZ$433,040 to the husband. The wife’s appeal was dismissed with an acknowledgement of the wife’s “perception of unfairness”:

…whether the ultimate outcome is substantively unfair can only be finally assessed once the outcome of any proceedings in the UK (if brought) are known. 

A further appeal was abandoned for want of legal aid.  

The husband then sought to bankrupt the wife on foot of the NZ$433,040 to bring an end to her “…unremitting propensity to litigate”. The irony of initiating this further litigation may have been lost on him.  

This brings us back to England and the refusal of the wife’s application under the Matrimonial and Family Proceedings Act 1984 for financial relief following a divorce overseas.

Judgment

Leave to appeal was granted by Mr Justice Moor on the basis that, although the parties’ connection with New Zealand is “substantially greater”, they were also British citizens, who had met, lived and worked in the UK, where their children were born. They had lived in the UK for “the majority of their marriage”. 

Referring to the conduct of the parties to date, he noted:

…I need to make it clear that, on a provisional basis, I am of the view that neither party behaved reasonably in [New Zealand] … The number of appeals was clearly excessive on both sides. Nothing was agreed through negotiation. In short, they brought much of their current difficulties on themselves.

The Next Chapter?

The history of the litigation between these parties makes very sad and troubling reading. It has undoubtedly done untold damage to them and to their children. I recognise that, in one sense, they only have themselves to blame but I heard the case on the day on which the new “no fault” divorce provisions came into force in this jurisdiction following the Divorce, Dissolution and Separation Act 2020.

The wife’s application for financial relief following a divorce overseas is to be listed for hearing in due course.

Moor J concluded:

I urge these parties finally to see sense and come to a sensible agreement, whether by mediation or other similar dispute resolution.

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