Even where a divorce has been obtained overseas, there are circumstances in which a claim for financial relief can still be brought in the courts of England and Wales (a single legal jurisdiction, but for ease referred to as “England”). This can include situations where some financial provision as a result of your overseas divorce has already been made.
Part III of the Matrimonial and Family Proceedings Act 1984 governs claims for financial provision following an overseas divorce; these are commonly known as “Part III” claims.
Not all jurisdictions provide for divorcing couples to receive reasonable financial provision. In some cases, a spouse may receive little or no financial provision on divorce, or provision that is wholly inadequate. In certain countries, this can result in significant injustices. The purpose of the Act is to address these situations and achieve greater fairness for international families, by enabling appropriate financial relief to be sought in England.
First, the overseas divorce, annulment or legal separation must be recognised as valid in England. While a divorce that is lawful in the country in which it was obtained will often be recognised here, there are specific rules on recognition.
Secondly, the applicant must not have remarried, as remarriage will generally prevent a claim for financial relief under Part III.
Thirdly, the applicant must have a sufficient connection with England. This is usually based on either parties’ domicile, habitual residence, or a legal or beneficial interest in property located within England. The eligibility criteria are limited, so the applicant will need to ensure that they can evidence their eligibility before embarking on an application. Specialist advice pre-application can be obtained from the Dawson Cornwell team.
Applying for permission to apply
Assuming that you can establish a connection to England in one of the abovementioned ways, the first step is to apply to the court for permission to make an application. This is known as applying for ‘leave’. The process acts as a filtering mechanism to prevent wholly unmeritorious claims from being pursued. The threshold is not high but it must be more than just a “good arguable case”.
In determining whether to grant leave, the court will consider:
- The connection that the parties have with England;
- The connection with the country in which the marriage was dissolved or annulled or in which the parties were legally separated;
- The connection the parties have with any other country;
- Any financial benefit which the applicant or a child of the family has received, or is likely to receive, in a another country;
- The financial provision awarded in the country where the divorce took place and the extent to which that order has been complied with or is likely to be complied with;
- Any right the applicant may have to apply for financial relief from their spouse under the law of another country;
- The availability in England of any property in respect of which an order could be made;
- The extent to which any order made under the Act is likely to be enforceable;
- The length of time that has elapsed since the date of the divorce, annulment or legal separation.
Once the court has granted leave, the application will proceed to the second stage of the process, which is to issue the substantive application for financial relief. The application then proceeds in much the same way as an application for a financial remedy order following a divorce in England.
The court can make a range of orders similar to those available on a divorce in England, including the transfer or sale of property, lump sum payments, maintenance for a spouse and for children, and pension sharing orders. It also has the power to grant injunctions to restrain the disposal of assets and, in appropriate cases to set aside transactions where assets have been transferred with the intention of defeating a spouse’s claim for financial relief.
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 permit effective orders to be made in respect of offshore assets. They may also be used to obtain pension sharing orders, as orders made in foreign divorce proceedings will not generally be recognised or enforceable against pension schemes in England. Such applications can often be resolved by agreement between parties, subject to approval by the court.
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 financial relief, as this requires careful analysis of the relevant case law and the particular circumstances of each case.
