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Financial provision in England and Wales after divorcing abroad

It is possible for the English courts in certain situations to order financial provisions where spouses have divorced abroad, but one party received no, or little, financial provision. This is achieved via Part III of the Matrimonial and Family Proceedings Act 1984. Mirror provisions apply in relation to the dissolution of a civil partnership abroad. 

Is a Part III claim an automatic right?

The process is discretionary and so it is necessary to get permission from the courts in this country to make an application. The purpose of these provisions is to achieve fairness, given that the courts of some countries do not have the same powers as the courts of England and Wales. For instance, Part III claims are particularly useful where a foreign court:

  • Tends to favour nationals over foreigners, one religion over another, or a husband over a wife
  • Has insufficient mechanisms to force financial disclosure, or enforce orders
  • Does not have jurisdiction over assets located abroad
  • Does not have the ability to order a sharing of pensions

Foreign pension sharing orders have no validity against English pensions, and a Part III application would be necessary to share an English pension. These applications are commonly made by consent.

Who can apply?

To make a Part III application, the potential applicant must have been granted a divorce, legal separation or annulment outside the United Kingdom, Channel Islands or Isle of Man and this must recognised as valid in England. In general, a divorce is considered valid if it was legal in the country in which it was obtained, but expert evidence from the relevant jurisdiction should be sought.

Further, the applicant must not have remarried, and they must also have a sufficient connection with England, which can be demonstrated in one of three ways:

  • At the time of the foreign divorce, or at the time of the application, either spouse was domiciled in England
  • Either spouse was habitually resident in England for 12 months before the date on which the foreign divorce took effect, or for 12 months before the date of the application
  • Either spouse have a beneficial interest (you do not need to be on the legal title) in a property in England which was, at some point, the matrimonial home.

If an individual relies on having a beneficial interest in a property located in England, that claim will be limited to the propertys value and a maintenance order cannot be made.

How to apply

Part III claims involve a two-stage process.

Stage 1: permission to apply

This is known as applying for leave and is generally without notice to the other party, so it is not necessary to inform them of the application.

This filters out claims that have no chance of success, and the court must, therefore, be persuaded that there is substantial ground for making the application. Case law suggests that substantial should be interpreted as solid, and there must be more than a good arguable case. This is to prevent purely unmeritorious claims.

The court will consider several factors before granting permission, including:

  • The connection the parties have with England and Wales
  • The connection the parties have with the country where the divorce took place
  • The connection the parties have with any other country
  • The financial benefit that has already been received, or any right to apply for financial relief elsewhere
  • The extent to which any order made is likely to be enforceable
  • The length of time that has elapsed since the date of the divorce

 

Stage 2: substantive application

Where the courts grant permission to apply for financial relief, the substantive application must be issued, and this replicates a standard financial remedy application following a divorce in England, including the exchange of relevant financial disclosure via a Form E.

Inherent within a Part III case is an international element and it will be important to consider whether interim applications are required, such as for freezing injunctions. The court can also award interim maintenance.

In deciding whether to make an order, the court will consider:

  • The appropriateness of the order
  • If they are going to make an order in favour of the applicant
  • If there are any children of the family

The court, which has wide discretion, will consider the appropriateness of making the order in the context of all the circumstances of the case. The court is unlikely to order more than would have been awarded had the divorce taken place in England, but it should provide for the reasonable needs of the applicant and any children.

However, it should be stressed that a Part III claim has its purpose limited to alleviating hardship in cases of a divorce overseas and the fact that an English court might have made a greater financial award is not enough to justify an order being made.

If successful, the court can order financial provisions on the same principle as those that are available where the divorce is applied for in this country, for example:

  • The transfer or sale of property
  • A lump sum
  • Maintenance
  • A pension sharing order (if the pension is located in this country)

The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.

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