De Gafforj (Appeal: Hadkinson Order), Court of Appeal - Civil Division, September 20, 2018, [2018] EWCA Civ 2070

Resolution Date:September 20, 2018
Issuing Organization:Civil Division
Actores:De Gafforj (Appeal: Hadkinson Order)
 
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Neutral Citation Number: [2018] EWCA Civ 2070

Case No: B6/2017/2855

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL FAMILY COURT

District Judge Hudd

ZC16D00085

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 20 September 2018

Before :

LORD JUSTICE PETER JACKSON

and

LORD JUSTICE COULSON

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Between :

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Peter Newman (instructed by Kingsley Napley) for the Applicant

The Respondent did not appear

Hearing date : 20 September 2018

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Lord Justice Peter Jackson:

  1. This is an application by Anne Orenga de Gafforj (`the wife') for an order preventing Henri Orenga de Gafforj (`the husband') from pursuing an appeal that is awaiting determination by this court at a hearing on 24/25 October 2018 on the basis that he is in contempt of court by having failed to comply with orders for maintenance pending suit, costs and a legal services payment order. The order sought is known as a Hadkinson order after the decision in Hadkinson v Hadkinson [1952] P 285.

  2. We have today granted the wife's application. These are my reasons for concurring in that decision.

    The background

  3. The circumstances leading to this unusual application need only be briefly stated. It arises from a battle about whether the parties' divorce should take place in England or in France. The parties, who are French, married in France in 2002. They have two children who have for some years been educated in England, where the wife now has a home, while the husband remains in France.

  4. In April 2016, the wife issued a divorce petition in England. Six weeks later, the husband issued a petition in France and in June 2016, he applied for the English proceedings to be stayed on the basis that the English court lacked jurisdiction. He asserted that the condition in the fifth indent of Article 3 of the Council Regulation 2201/2003 was not met because the wife had not been resident in England for a year at the date when the petition was issued. That issue was tried by DJ Hudd at the Central Family Court. In April 2017, she gave judgment in favour of the wife, finding that she had been resident (though not habitually resident) in England and Wales for a year at the date the petition was issued. She rejected the husband's case that the wife would have to be habitually resident (and not just resident) in order to found jurisdiction, and she refused to make a reference to the European Court of Justice. She subsequently gave...

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