Even if you have obtained a divorce overseas there are still some cases where you are able to bring a claim in the courts of England and Wales for financial relief. A person may apply under Part III of the Matrimonial and Family Proceedings Act 1984 for a financial order after a foreign divorce even if financial provision has already been made in a court abroad. If you are successful in the application the court has power, in a situation where one of the parties has substantial connections to England or Wales, to make binding orders where no financial provision was made by the foreign court or where the provision is inadequate.
It may be that the divorce was in a jurisdiction where the courts did not have authority over foreign property, had no ability to force financial disclosure or even enforce agreements and orders. Perhaps they did not have the ability to order pension sharing or may have even demonstrated favouritism over their own nationals in comparison to foreign spouses. One example of this is Italy, where the Court does not have jurisdiction to deal with overseas pensions or assets outside the Italian jurisdiction.
So, what is the criteria to be met for a financial claim in England after a divorce abroad?
There are basic criteria to be met. The marriage, as well as the divorce, must be legally recognised and valid under English law and the proceedings can only be brought if the applicant has not remarried.
What is the procedure for a claim under Part III of the MFPA 1984?
The first stage of the process is a without-notice application for permission to proceed. The applicant must show that they satisfy the jurisdictional requirements of the court in that they have a substantial connection to England as follows.
- Either party is domiciled (i.e., they consider it to be their true home) in England and Wales on the date the application for permission or on the date the divorce took place; or
- Either party has been habitually resident (i.e., their life is mainly based there) in England for one year ending at the date of application or the date the divorce took place; or
- Either party has at the date of application an interest in a house in England and Wales that at some point was used as a matrimonial home. (If jurisdiction is solely based under this heading the courts powers are limited to the value of the house). The interest can be a beneficial interest, so the applicant’s name does not necessarily need to be on the legal title.
The Judge will consider a variety of factors in deciding if the party should be given permission to proceed. These are:
- The connection the parties have with England and Wales, the country they were divorced in and any other relevant country;
- Any financial benefit that the applicant or a child of the family has received or is likely to receive in consequence to the divorce (or annulment or legal separation) by virtue of any agreement or law of a country outside England;
- Where an order has been made by a foreign court requiring the other party to the marriage to make any transfer of property for the benefit of the applicant or child of the family, the extent of that financial relief and how likely it is to be complied with.
- The availability of any property in England and Wales in respect of which an order in favour of the applicant could be made;
- The extent any order made here is likely to be enforceable; and
- The length of time that has elapsed since the divorce, annulment, or legal separation.
The application for permission must be supported by a very detailed statement in support with full documentary evidence where available. An applicant will often obtain a short expert report from a specialist of the relevant jurisdiction in support of their application so the court can address the factors listed above.
If permission is granted, then the applicant will make a further application to the court to commence the usual financial remedy process as if applying for a financial remedy order following a divorce in England or Wales. There may be cost consequences for failing to adhere to the timetable laid down by the court.
The English and Welsh courts have broad discretion to grant financial provision. The applicant will need to show that they have done their best to obtain reasonable financial provision in the country where the divorce took place. Part III claims should not be seen as “top-up” to a foreign award and the fact that an English or Welsh court could have made a greater financial award than the foreign court is not in itself enough for an order being made.
The courts can make similar orders to those on an English/Welsh divorce including transfer of property, lump sums, spousal or child maintenance and pension sharing orders. It is also able to make injunctions restraining disposition of assets.
Specialist advice should be sought before considering whether Part III claim may assist you as these cases are not always straightforward and will require careful analysis.
For further information, please contact Cate Silvester in the family law team on 01732 747900 or email [email protected]
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.