The English High Court offers a Second Opportunity for a Fair Financial Settlement to Spouses divorced abroad under Part III of the Matrimonial & Family Proceedings Act 1984
Cross-border divorce raises unique issues, not the least being where to actually initiate divorce proceedings. Often an individual will return to their country of origin for the divorce, despite being domiciled in the UK. Once the divorce has been obtained and the finances settled it would not be unreasonable to assume that the matter has come to an end. However, this is not necessarily the case, Part III of the Matrimonial & Family Proceeding Act 1984 (MFPA 1984) has a provision which permits an English court discretionary powers to step in and make financial orders in the same way as if the divorce had been granted in England providing particular requirements regarding jurisdiction are met.
The Act was intended to offer fairness to the ever enlarging number of families undergoing international divorces, providing for individuals with a connection to England and Wales who find that the difficulties thrown up by their overseas divorce, for example when distance, language difficulties, lack of funds for representation aboard, perceived bias towards nationals or men, inability to obtain disclosure or enforcement of orders has resulted in a poor financial outcome. The Act can offer a lifeline and can be used to redress the balance. An application can be made before the High Court of England and Wales for a fairer financial arrangement.
There are certain criteria to be fulfilled before such an application can be made:
- at the time of the foreign decree, at least one of the parties to the marriage was domiciled in England and Wales, or,
- at least one of the parties was habitually resident in England and Wales for one year preceding the application or decree, or,
- at least one of the parties is entitled to a beneficial interest in a property in England and Wales that was once the matrimonial home (in which case the court is confined to dealing with the property in question).
The application is made in two stages, known as the filter mechanism, in the first place an application is made for leave under s.13 and R3.17 FPR. The court must consider two things once permission has been granted:
- first, whether it is appropriate for a UK court to make the order the applicant is seeking.
- If the answer is "yes" the court goes on to consider all of the circumstances of the case, including all the relevant factors that the court would normally consider at the start of financial relief proceedings. Including the financial resources of the parties, the standard of living they enjoyed during the marriage and their competing financial needs. The English court has the power to 'revisit' the case and is given recourse to the full range of remedies the court usually has available to it.
It will be no surprise to learn that the Respondent frequently resists the procedure by appealing the granting of leave, which inevitably involves costs, delays and litigation before the question of revised appropriate financial provision can be considered. Such activity has caused a review by the Supreme Court which concluded that action had to be taken to prevent waste of costs, court time and applications to set aside which have little merit and have scant chance of success. The Supreme Court further indicated that the principal objective of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or use as a threat to a partner. The Supreme Court made several other observations and recommendations to manage the situation.
Recent case law, outlined below, provides an example of how the Act can be applied and shows that the English courts are not afraid of over-riding orders made by judges in other countries.
Recent Cases:
In the case of Z v Z and Others [2016] EWHC 911. A Russian divorce, where despite the wife taking five years to bring the proceedings in which to attempt to over-ride the Russian financial order compromising claims worldwide, the English judge found that it was appropriate for the court to make a financial remedy order under Part 111 of the MFPA 1984 even in the face of the existence of the Russian financial order.
The English ancillary relief system (financial settlements in divorce matters) is popularly believed to be one of the most generous in the world, leading to London being considered the divorce capital of the world. Furthermore, the use of Part III of the MFPA 1984 is often regarded as a "back door" remedy for foreign nationals who live in England and Wales who feel that they have been badly treated in the overseas court. The Act offers a second opportunity for a spouse to receive a fairer settlement.
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