Financial relief after an overseas divorce

Part III Matrimonial and Family Proceedings Act 1984

Under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984), it is possible to apply to the Court of England and Wales for a financial remedy order if no, or inadequate, financial provision has made following an overseas divorce.

To apply, the marriage must have been dissolved or annulled in an overseas country and the marriage must have been recognised as a valid marriage in England and Wales. It is important to note that an application under Part III cannot be made in the event the party has subsequently entered into another marriage.

There must also be some form of connection to the jurisdiction of England and Wales. This would include either party being domiciled in England and Wales either on the date of their divorce, or subsequent application to the Court or habitually resident here throughout the period of one year ending with the date of the application or divorce. Alternatively, a connection can be shown by either party having a beneficial interest in a property in England or Wales, which at some point during the marriage must have been the home of the parties.

Before a substantive application can be made to the Family Court, it is firstly necessary to obtain permission to apply. As well as considering the jurisdiction test as set out above, the court will also consider whether there is a “substantial” or “solid” ground for making the application. To determine whether the applicant’s case is substantial or solid, the Judge must consider all the circumstances of the case such as: –

• the parties’ connection to England and Wales and the country where the marriage was dissolved. The stronger the connection to England and Wales, the strong the application;
• any financial benefit the applicant has received already;
• the extent to which any financial provision ordered in an overseas country has been complied with;
• whether the applicant has a right to apply for financial relief from any other country;
• what assets are held in England and Wales;
• the length of time since the overseas divorce and;
• where relevant, any hardship or injustice.

If the Court permits a substantive application, they may also order interim maintenance if the applicant or any child of the family is in “immediate need of financial assistance”.

What Orders can the Court make?

If it is determined that an applicant has substantial or solid grounds for making an application, the Court has the power to make all the same orders it could make in the event the divorce was initially issued in England and Wales. These include: –

• Transfer or sale of property;
• Transfer of tenancy;
• Spousal maintenance;
• Lump sum order;
• Varying the terms of a nuptial agreement;
• Pension sharing order.

The exception being where the Court’s jurisdiction is based solely on a beneficial interest in a family home, in which case there is no ability to make an order for maintenance.

The Court also has the power to prevent the respondent from disposing of assets with the intention of defeating a claim by restraining or avoiding transactions.

Will the Court make an Order?

When deciding whether to exercise its powers, the Court in England and Wales must have regard to the following matters: –

• all the circumstances of the case, with the first consideration given to any minor;
• current and future resources of the parties;
• needs of the parties;
• standard of living enjoyed during the marriage;
• age of the parties and the length of the marriage;
• financial and non-financial contributions made by both parties;
• conduct of the parties;
• the extent to which overseas orders have been complied with.

The above list is not exhaustive, nor is it in order of importance.

Guidance has also been given by the courts as to whether an order should be made, primarily the decision of the Supreme Court in Agbaje v Agbaje, which remains the leading case on Part III applications. This case confirmed that the court has a broad discretion, subject to the following three general principles: –

1. Primary consideration is given to the welfare of any child of the marriage;
2. It will never be appropriate to make an order awarding the applicant more that an English court would have awarded, if proceedings were initially issued in England and Wales; and
3. Where possible, provision should be made to meet the reasonable needs of the spouse and, if the parties’ connection with England and Wales is strong, the court is more likely to fully apply domestic law.

Therefore, even if you have already received an overseas financial settlement on divorce, you may still be able to apply for financial provision in England and Wales. If you have any questions in this respect, our specialist Family Lawyers will be delighted to assist.