Financial claims after a foreign divorce

Even if you have obtained a divorce overseas there are some circumstances in which you can still bring a claim for financial relief in the courts of England and Wales (considered as one legal jurisdiction, but for ease referred to as England). This includes circumstances in which you have received some financial provision as a result of your overseas divorce.

What is the Act under which you can claim?

Part III of the Matrimonial and Family Proceedings Act 1984 governs the bringing of financial claims after a foreign divorce; hence they are often known as “Part III” claims.

Why does the legislation provide for this?

Not all countries allow for divorcing couples to be awarded reasonable financial provision. Sometimes a spouse may either receive no financial provision on divorce or wholly inadequate provision. There are still some appalling injustices in some countries. The purpose of the Act is to help redress these situations and achieve greater fairness for those international families.

What are the criteria that you must meet in order to apply?

First, your divorce must be recognised as legally valid. If your divorce was legal in the country in which it was obtained, then the courts here will accept that it is legal for the purposes of our law. Secondly, you must not have remarried. Thirdly, you must have a sufficient connection with England.

What is a sufficient connection with England?

You can show that you have sufficient connection with England via one of the following:

1. either you or your former spouse must have been domiciled in England (i.e. you consider it your true home) at the time of the foreign divorce or at the time of the application; or
2. one of you must have been habitually resident in England (i.e. your life is mainly based here) for 12 months before the date on which the foreign divorce took effect or for 12 months before the date of the application; or
3. one of you must have an interest in a property here that had been a matrimonial home (but in this case your claim is limited to the value of the property). The interest can be a beneficial interest so your name does not necessarily need to be on the legal title.

[These criteria are currently unaffected by Brexit.] The eligibility criteria are limited, so you will need to ensure that you can evidence your eligibility before you embark on making an application. If you do not consider England to be your true home, and you live abroad and there is no matrimonial home in England, then you are likely to struggle in establishing jurisdiction. Specialist advice pre-application can be obtained from the Dawson Cornwell team.

Applying for permission to apply

Assuming that you can establish a connection in one of the abovementioned ways, the first step is for you to apply to the court for permission to make an application. This is called applying for ‘leave’. These applications are made without notice to the other spouse. The process provides a filtering mechanism to prevent wholly unmeritorious claims being pursued.  The threshold is not high but higher than a “good arguable case”. 

In determining whether to grant you leave, the court will consider:-

1. The connection you and your spouse have with England
2. The connection you have with the country in which the marriage was dissolved or annulled or in which you were legally separated
3. The connection you have with any other country
4. Any financial benefit which you or a child of the family has received, or is likely to receive, in a different country
5. The financial provision awarded by the country where the divorce took place and the extent to which the order has been complied with or is likely to be complied with
6. Any right which you have to apply for financial relief from your spouse under the law of any other country
7. The availability in England of any property in respect of which an order could be made
8. The extent to which any order made under the Act is likely to be enforceable
9. The length of time which has elapsed since the date of the divorce, annulment or legal separation.

Once the court has granted you leave, you will then be free to move on to the second stage of the process. This is to issue your substantive application for financial relief. The application proceeds in much the same way as if you were applying for a financial remedy order following a divorce in England. 

What factors will the court take into account?

In considering the appropriate financial provision to be awarded, the English court is unlikely to order more than would have been awarded had the proceedings taken place entirely in England. Where possible the financial outcome should provide for the reasonable needs of both you and your spouse, and any children. 

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 what could be argued is adequate financial provision via the overseas divorce, it will not be appropriate for Part III to be used as a simple "top up". The fact that an English court might have made a greater financial award than the provision made by the foreign court is not of itself enough to justify an order being made.

The English courts have broad discretion to grant financial provision. The legislation sets out the circumstances in which the discretion might be exercised. You will have to show that you have used local remedies and done your best to seek reasonable financial provision in the country where the divorce took place. However, it is not for England and Wales to act as a court of appeal of other countries with similar approaches to England and Wales. Neither is it an opportunity to have two ‘bites of the cherry’.

What orders can the court make?

The court can make similar orders to those on an English divorce; transfer or sale of property, lump sums, maintenance for you and for children and pension sharing orders. It can also make injunctions restraining dispositions of assets and / or set aside a transfer of assets made with the intention of defeating the other spouse’s claim for financial relief.

Changes due to Brexit

There are two key changes:

1. Prior to Brexit, Article 7 of the EU Maintenance Regulation provided the English court with the power to make a needs-based Part III order on an exceptional basis, so long as no other EU Member State had jurisdiction to make an effective order and so long as proceedings for an effective pension sharing order could not be brought elsewhere. This was the ‘forum of necessity’ – and really helped international families with no ongoing connections to England who sought a pension share of a scheme held with a pension fund here. Post-Brexit, the EU Maintenance Regulation no longer has any effect, meaning that overseas parties lose the ability to rely on the forum of necessity. They cannot obtain pension sharing orders in England after overseas divorces unless one of the spouses is domiciled here or habitually resident here for 12 months. This will be problematic when overseas settlements are reached and international parties have pensions that are administered in England.

2. Further, as mentioned above, pre-Brexit claims under Part III were limited by the EU Maintenance Regulation, which provides for reciprocal enforcement of maintenance orders within the EU. The EU country in which a maintenance application was first made would have power to deal with that issue and make an order. These provisions took precedence, meaning that if a case related to maintenance and there had already been a decision of the court in another Member State, an individual may have been unable to bring a Part III application in England that included maintenance. However, this no longer applies so the courts here have greater authority to consider all aspects of financial provision.

Other circumstances to which Part III usefully applies

Part III proceedings can be particularly useful where the law of the country in which the divorce took place does not allow orders to be made in respect of offshore assets. They can also be used to obtain pension sharing orders, which may be necessary because foreign divorce pension sharing orders made in a foreign divorce have no validity against English pensions. Often these applications can be made by consent.  

Why Dawson Cornwell?

Specialist advice should be sought before considering the options that Part III legislation may provide for you. It is not always straightforward to assess whether a court is likely to award you financial relief and it will require a careful analysis of the case law regarding your particular circumstances.