Financial Remedies after Overseas Divorce
What it is, who and how we can help
In certain circumstances, it is possible to make an application to the English Courts for financial remedies even though the parties have been divorced abroad. Part III of the Matrimonial and Family Proceedings Act 1984 provides the legal framework for making such applications.
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Part III is only designed to be used by individuals who have a substantial connection with England and Wales but who have been divorced in an overseas jurisdiction. The application must be made promptly following the divorce in the overseas jurisdiction. The Act gives the court the powers to make financial orders where the overseas court that dealt with the divorce has made no financial provision or has made provision that is considered inadequate.
The first stage is to ask the English Court for permission to bring such a claim. This is a filter stage to weed out any weak claims at the outset. The court will not grant permission for the claim to proceed unless there is a substantial ground for making an application.
Our team acted in the high profile and key case on the test for permission in the Supreme Court in 2023 in the case of Potanina v Potanin. We have significant experience and expertise in advising clients in these cases.
A prerequisite is that your divorce must be recognised as legally valid (and you must not have remarried). There may be cases where the court does not recognise the overseas divorce, for example in some Sharia marriages where a talaq has been pronounced. We have significant experience in dealing with Islamic marriages (and divorces) and will be able to guide you accordingly.
The court will only have jurisdiction to entertain a claim where one of the following applies:-
1. Either of the parties to the marriage was domiciled in England and Wales on the date of the application;
2. Either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the application; or
3. One of the parties has an interest in a house located in England or Wales, which was at some time during the marriage a matrimonial home of the parties.
The court will examine the parties’ connections with England and Wales and the depth of their connections with the overseas country that granted the divorce. The court will consider what, if any, financial provision has been made by the overseas court and will look at whether an order, if made, is likely to be enforceable.
This is a complex area of law and our team are specialists in examining the merits of a case and advising upon the likely prospects of successfully securing permission to bring a claim.
If permission is granted then the second stage is the substantive application for financial relief. This proceeds in a similar manner to an application for financial remedies following an English divorce. The court will take into account the strength of the connection with England. If the connection with England is strong, it may be appropriate for an order to be at a similar level of provision as would have followed an English divorce, although this is not guaranteed. If the connection is weaker then the award is likely to be lower. Where possible, the court will endeavour to provide for the reasonable needs of the applicant.
FAQs
Possibly. The test is strict and you must be able to satisfy the jurisdiction grounds. Part III should not be regarded as a method of simply topping up an overseas award or as a second bite of the cherry.
No. The process is discretionary and the court’s permission is needed to bring a claim.
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