There may be circumstances whereby a couple have married in the UK and then relocated overseas because of work commitments; family ties or other personal reasons.
If the marriage thereafter breaks down whilst the couple remain living in another country then, depending on their circumstances they may divorce in that country rather than divorcing in England and Wales.
If, however, one spouse returns to the UK and wishes to resolve the financial position in England and Wales then they have the ability to do so under the Matrimonial and Family Proceedings Act 1984 (“MFPA”).
When can an application for a financial order be made in England and Wales?
Under the law in England and Wales, there is provision under Part III of the Matrimonial Family and Proceedings Act 1984 (“MFPA”) for the family court to provide a financial settlement for couples who may have divorced abroad and have not been able to get a fair or any settlement in that country.
Permission of the court is required to make an application for a financial order, and it is only granted where it considers there is a solid, or substantial ground for making an application.
An application can be made under Part III where specific criteria is satisfied, namely:
- The divorce or legal separation is recognised as valid in England and Wales;
- The marriage must have been dissolved or annulled, or the parties to the marriage have been legally separated by means of judicial or other proceedings in an overseas country;
- Either partner must domicile in England and Wales or was living in England or Wales for a period of one year up to the date of the application for foreign divorce, annulment or legal separation took effect. Alternatively, either spouse must have or had an interest in a family home based in England and Wales.
How can an application be made?
The first stage is when issuing proceedings under Part III of the MFPA 1984 is to apply to the court for permission. This is the first stage in a two-stage process, in which the court must grant permission and consider the substance of the application. The court may not grant permission unless it considers there is substantial ground for making an application.
Essentially substantial ground means solid. In the case of Agbaje -v- Agbaje [2010] the Supreme Court provided the following guidance:
“the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than ‘serious issue to be tried’ or ‘good arguable case’ found in other contexts. It is perhaps best expressed by saying that in this context ‘substantial’ means ‘solid’.”
At the permission hearing the court will also need to give consideration as to whether it would be appropriate to grant financial relief at the permission hearing. Such considerations will include:-
- The couple’s connections to England and Wales;
- Financial relief; and
- Enforceability.
If the court grants permission, then the application will progress to the second stage, which is the substantive application. This will mean that the application will follow the more standard procedure for financial settlement upon divorce in England.
The court will then consider a two-stage test in deciding whether or not to make an order, namely:-
The appropriateness of the order. The court must consider in all the circumstances of the case whether it would be appropriate for the order to be made by a court in England and Wales.
Whether it is appropriate to make the order under Section 16(2) of the MFPA.
What types of orders can the court make?
The court has a wide jurisdiction when it comes to granting financial orders. The most common orders include:-
- Transfer or sale of property;
- Pension sharing;
- Lump sum payments;
- Interim orders (for legal fees or maintenance); and
- Long-term maintenance in respect of a spouse or children. Ultimately, the court will consider whether it is appropriate for an order to be made in this country.
Summary
This is an extremely complex area of international family law and if you are in a position whereby it may be applicable to your circumstances then we suggest seeking legal advice from a specialist international family law solicitor at the earliest possible opportunity as delay can affect the merits of any application.
For more information in relation to this matter or any other family law advice then please contact Kate Barlow or another member of our family law team.
