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:
[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:-
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:
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.