The English Court are frequently criticised for having too much discretion and being able to make any order they see fit, depending on the circumstances of the case before them. Such criticism appears to have been raised again following a recent Court ruling.
In this case, a husband and wife, who were both Russian nationals, obtained a divorce after 11 years of marriage. The divorce was obtained in the jurisdiction of Russia and included a financial agreement in 'full and final settlement' in any jurisdiction. 5 years after obtaining the divorce and financial agreement in Russia, the wife made an application in an English Court for financial provision arising from her marriage. The Court allowed the application stating that even if the terms of the agreement were fair that fact alone is not necessarily a bar to future claims, provided that the English court considers it ‘appropriate’ in all the circumstances to make an order.
Beyond their valid post-nuptial agreement – made upon divorce – which professed to conclude all claims worldwide, it is difficult to imagine what more the parties could have done to evidence their intention. By allowing W to go behind the agreement the English court neither upheld personal autonomy nor the authority of the original court in Russian. Arguably, therefore, the decision manifests paternalism on an individual and international level.