A recent decision by the Court of Appeal has significant ramifications on the finality of any foreign divorce settlement.

It is essential that legal practitioners specialising in the divorce area are aware of the consequences of developments brought about by the case of Hewitson v Hewitson [1994] The Times, 14 October.The facts of the case can be briefly stated.

The wife met her husband in 1977 and co-habited with him in the USA before they married in California in 1983.

The parties separated in January 1987 and were divorced in California in December 1987.

In 1988 a comprehensive agreement was negotiated between them that became the order of the Californian court.

It included spousal support for a limited period and capital payments.

The terms of the order were implemented by the former husband and their effect was to create a clean break final order between the spouses.Subsequent to the clean break divorce settlement the parties from time to time cohabited briefly, both in the USA and in England after the wife came here in 1989.

They finally parted in 1992.

The wife applied under s.13 of the Matrimonial and Family Proceedings Act 1984 for leave to apply for financial relief under s.12 on the grounds that because of the parties' continuing association she was induced to take financial steps to her detriment, as a result of a promise by the husband to maintain her for the rest of her life, which he had refused to do, and that she was now in a parlous financial situation.However, the Court of Appeal, with the leading judgment that of Butler-Sloss LJ, unanimously held that a wife granted a clean break final order by a Californian court cannot thereafter be given leave under s.13 of the Act to apply for relief.

This is notwithstanding a temporary resumption of cohabitation with her husband in this country after the divorce.

It is essential here to outline the mechanism adopted by the 1984 Act, as interpreted by their Lordships in Hewitson.At the outset an application is made by a party ex parte by originating summons issued in form 25 out of the divorce registry, and shall be supported by an affidavit by the applicant stating the facts relied on in support of the application.

(The rule prescribed by SI 85/1315 with effect from 15 September 1985 is r.111A, which has been inserted in the Matrimonial Causes Rules 1977 after r.111.)To apply for financial relief in accordance with s.12 of the 1984 Act the marriage must have been dissolved or annulled, or the parties legally separated by means of judicial or other proceedings in an overseas country and the divorce must be entitled to recognition in England.

By s.13(1) the leave of the court is required and the court should not grant leave unless it considers there is substantial ground for making an application for such an order.

In essence this section acts as a preliminary filter device to deny leave for a future inter partes hearing, with attendant beneficial cost implications over denying inappropriate cases a full hearing.

The parties need to comply with the jurisdictional touchstone criteria.

In accordance with s.15 of the statute, the court must have jurisdiction because either of the parties was domiciled in England at the date of the application for leave or at the date of the dissolution of the marriage; or either party had 12 months' habitual residence in England prior to those same dates; or either party at the date of the application for leave had a beneficial interest in a dwelling house in En gland which had at some time been the matrimonial home.In Hewitson the wife complied with the jurisdictional requirements of s.15 as she habitually resided in England.

However, there is a further duty imposed upon the court which is whether England and Wales is the appropriate venue for the application.

The issue before the Court of Appeal in Hewitson was thus whether in all the circumstances of the case it would be appropriate for a financial relief order to be made by an English court.Those circumstances included a clean break settlement already made by a competent Californian court which had been complied with by the husband.

There were no children of the marriage.

The wife sought an English order based on subsequent non-marital cohabitation, on the basis of which she had altered her position to her detriment.

The burden was on the wife being the applicant who sought to say that an order would be appropriate.

The court needed to pay particular regard to the non-exhaustive factors set out in s.16(2).

These include the connection which the parties to the marriage have with England, available property in England, rights to apply for financial relief abroad, and the length of time which has elapsed since the date of the foreign decree.It was submitted on behalf of the wife that leave was appropriate as the words of the Act are wide enough to give the courts jurisdiction.

The effect is to enable a former spouse after a foreign divorce to have the opportunity to come back to court, even in circumstances in which an English court would refuse to intervene after an English financial order.In contrast, the husband stressed that the mischief that the Act was designed to redress did not include the case of a foreign court of competent jurisdiction making an order which was neither appealed nor impugned; where the order was final and designed to create a clean break; and where he had fully complied with the order.

He argued that thereafter the relationship was one of man and mistress and pt III did not apply.It was held in Hewitson that a court of competent jurisdiction in California had made a consent order negotiated by lawyers that was designed to be comprehensive and final.

It would be inconsistent with comity existing between courts of comparable jurisdiction for an English court to review or seek to supplement the foreign order on the basis of the subsequent relationship of former spouses.

There had to be finality to litigation.

The umbrella of the dissolved marriage which covered the post-divorce period could not remain open for ever.

On the making of a clean break order between spouses with no children, that umbrella had to be closed.Thereafter the relationship which might develop between former spouses was to be dealt with under civil law.

The prospects of success of the application under s.13 were nil, and thus there was no substantial ground for the making of the application.

Although, prima facie, the exercise of the leave discretion should be a matter for the judge at first instance, nevertheless the Court of Appeal still has a vital role to play where the judge makes a manifestly incorrect exercise of the discretion.A number of interesting points have been raised by this judgment and the approach by the Court of Appeal, and they should be of particular interest to solicitors who specialise in family law aspects of private international law.With regard to difficulties caused by ex parte applications under s.13, it should be noted that practical difficulties can arise over the ex parte application procedure.

As high lighted earlier an application for leave to apply for an order for financial relief under the 1984 Act should be made ex parte by originating summons supported by an affidavit by the applicant, stating the facts relied on in support of the application with particular reference to the matters set out in s.16(2) of the Act.

The affidavit in support should also give particulars of the judicial or other proceedings by means of which the marriage was dissolved or annulled abroad.

The procedure is open to abuse by the applicant.An illustration of the practical procedural difficulties occurred in W v W (Financial Provision) [1989] 1 FLR 22.

The judge made an order granting unconditional leave, having considered on the wife's affidavit evidence alone that substantial grounds existed for the making of an application for financial relief.

The husband applied to set aside the order on the grounds that the wife had failed to make full, fair and frank disclosure of the material facts in her affidavit.Ultimately the order was set aside under RSC ord 32, r.6, which provides that the court may set aside an order made ex parte.

The judge had been misled by the ex parte application, which failed to disclose the material facts.

An order had been granted substantially different from that which would have been if disclosure had taken place.The case of W v W illustrates the point that the ex parte leave application procedure can lead to the court's time being wasted through the applicant providing inaccurate or misleading affidavit evidence.

In Hewitson their Lordships noted in passing that the first instance judge, Wall J, had expressed some concern about the course of the hearings before him in which he had an ex parte application, and thereafter an inter partes hearing to consider whether to set the leave aside.

The procedure for leave under s.13 might usefully be reviewed to provide for inter partes affidavit evidence at the filter mechanism stage.

This would remove the danger of court time being wasted, as shown in W v W.Their Lordships in Hewitson were unanimous in rejecting financial relief arising merely from the status of cohabitation.

Under English domestic law the rights of a party entering into cohabitation without marriage are manifestly less satisfactory than under the matrimonial legislation.

However, that deficiency, identified by their Lordships, should not be a reason to extend the provisions of the 1984 Act to a mischief for which it was never envisaged it would provide a remedy.

It was never contemplated that the 1984 Act could, or should, be used to provide financial relief arising from a status of cohabitation, even if the parties had previously been married.

In this regard their Lordships clearly view the first instance decision in S v S (Financial Provision: post-divorce cohabitation) [1994] 1 FLR 228 as being wrongly decided.Their Lordships, following Holmes, have clearly stated that it would be inconsistent with the comity existing between courts of comparable jurisdiction, and offensive to public policy, for an English court to review or seek to supplement the foreign order on the basis of the subsequent relationship of the former spouses.

The words of Russell LJ in his judgment in Holmes [1989] Fam 47 were apposite when he said: 'Prima facie the order of the foreign court should prevail, save in exceptional circumstances.'This approach is undoubtedly correct, given that a court of competent jurisdiction in California had made a consent order negotiated by lawyers, and that order was not appealed or successfully criticised.

The former husband had complied in full with the order, no children were involved, and the order itself was expressly designed to be comprehensive and final, embodying all the ancillary matters following upon the dissolution of a failed marriage.

As the Law Commission identified, the legislation should not be a catalyst encouraging parties to apply to English courts simply to act, in effect, as a court of appeal subsequent to a decision by a competent foreign court, which has dealt fully with the matter.

It is to be welcomed that forum shopping has been denied to the litigant.An interesting postscript to Hewitson is that prior to the marriage the parties entered into an antenuptial marriage agreement in California.

No doubt the husband, a wealthy millionaire, was concerned about the liberal Californian community of property regime.

It would have been prudent for the wife not to have entered such a contract.

It was not for the English court to mend a bad contractual bargain, and it would have been egregious if they had done so.