Financial claims after a foreign divorce

The English family courts have the ability to grant divorce financial provision even though a divorce may have been previously pronounced abroad and financial provision already made. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision being made on divorce by a foreign court in a situation where the parties had substantial connections with England.

There are still some appalling injustices in some countries abroad which is where the English legislation helps to redress some of these cases. It is an opportunity for fairness and justice for some international families. However, it is not for England to act as a court of appeal of other countries with similar approaches to England. Neither is it an opportunity to have two ‘bites of the cherry’.

In order to bring a claim in England, the parties must have sufficient connection to England as follows:

• Either is domiciled in England and Wales at the time of the foreign divorce or at the time of the application; or
• Either has been habitually resident in England and Wales for 12 months at the time of the foreign divorce or at the time of the application; or
• One party has an interest in a dwelling house in England and Wales which had been a matrimonial home (when claims are limited to the value of the house);
• Other narrow criteria following recent EU legislation.

Dawson Cornwell can advise you whether you satisfy the necessary connection criteria to bring an application and the merits of your particular case.

In considering the appropriate financial provision to be made, primary consideration has to be given to the welfare of any child. It is not appropriate for the English court to order more than would have been awarded had the proceedings taken place entirely in England and where possible the financial outcome should provide for the reasonable needs of each spouse. Where the connection with England is strong, it may be appropriate for there to be such provision as would have been made had the divorce been in England. Where the connection is not so strong and there has already been adequate provision, it will not be appropriate for Part III to be used as a simple "top up".

The English courts may have broad discretion to grant financial provision here. The legislation sets out the circumstances in which the discretion might be exercised. The applicant has to have used local remedies and done his/her best to seek reasonable financial provision where the divorce had taken place.

Part III proceedings can only be brought if the applicant has not remarried. After first establishing jurisdiction to bring a claim under Part III, the next stage in bringing proceedings, is an application ‘without notice’ for permission to bring the application. Once permission is given, the application proceeds. The reason there is a filtering mechanism is it prevents wholly unmeritorious claims being pursued. The threshold is not high but higher than a "good arguable case".

Part III proceedings can also usefully be used where the law of the country where the divorce occurred does not allow orders to be made in respect of offshore property. It can also be used to obtain a pension sharing order in respect of an English pension in circumstances where other issues are dealt with in the foreign divorce and a foreign divorce pension sharing order will have no validity for the English pension company.

Specialist advice should be sought before considering the options that Part III legislation may provide for you.