Some married couples have ties to one or more countries. Different countries have different divorce, financial relief and children laws. As a result, what may apply in one country can be quite different in another. What happens if a divorce is granted overseas? Does this mean that the English courts are prevented from dealing with matters once an order has been made abroad?
In certain situations Part III of the Matrimonial and Family Proceedings Act 1984 (“the Act”) allows the English courts to make financial orders following a foreign divorce. There is a two stage application process. The first step is to establish whether the English courts have the jurisdiction (the ability) to hear the application.
The Act states that the court shall have jurisdiction if any of the following requirements are satisfied:
(a) either of the parties to the marriage was domiciled or habitually resident in England and Wales on the date of the application for permission, or the date on which the divorce was obtained; or
(b) either or both of the parties to the marriage had a beneficial interest in a property in England or Wales which was at some time during the marriage a matrimonial home.
The second step is to apply for leave (permission from the court) to make the application. In deciding whether to grant permission, the court should consider the following matters:
(a) the connection the parties have with England and Wales;
(b) the connection they have with the country in which the marriage was dissolved or annulled or in which they were legally separated;
(c) the connection they have with any other country;
(d) any financial benefit which the applicant or a child of the family has received, or is likely to receive, in a different country;
(e) the financial relief given by the country where the divorce took place and the extent to which the order has been complied with or is likely to be complied with;
(f) any right which the applicant has, to apply for financial relief from the other party under the law of any other country;
(g) the availability in England and Wales of any property in respect of which an order could be made;
(h) the extent to which any order made under this part of this Act is likely to be enforceable;
(i) the length of time which has elapsed since the date of the divorce, annulment or legal separation.
If leave is granted, the court will consider the merits of the case, and whether it needs to make any orders adjusting the couples finances. This legislation has been considered at some length by the Supreme Court. The Court of Appeal refused to make any provision for a wife, following a divorce in Nigeria. The Supreme Court overturned this decision, because of the family’s strong connections to England.
In making its order the court was clear the purpose of the Act was not to allow someone with ‘some’ English connections to take advantage of what may well be the more generous approach in England to financial provision. The Act should only be applied towards the alleviation of inadequate financial provision being made by a foreign court, where the parties had substantial connections with England. The fact that there might be a disparity between an award of a foreign court and what would be awarded in an English court is not enough to allow an application using Part III.
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