Opinion and insight from our Family law team.
Can you obtain a financial order in England and Wales after an overseas divorce?
- AuthorJohn Boon
The Matrimonial and Family Proceedings Act 1984, Part III, enables people to apply to courts in England and Wales where there has been an overseas divorce and no, or inadequate, financial provision has been made.
It is necessary to apply for permission, or leave, from the courts before issuing the main financial application. We can work with you to demonstrate to the court that you have substantial grounds for seeking a financial order. This preliminary application is a safeguard against frivolous or time-wasting applications.
It is important to note that an application can be made even where a financial order has been made in the foreign court. This can help where the provision is, perhaps, inadequate, or cannot apply to assets based in England or Wales, such as pensions.
You will usually have to demonstrate that either:
- You or your spouse were domiciled in England and Wales either on the date that the application for leave was made, or the date the foreign divorce took effect; or
- You or your spouse had been habitually resident’ here for one year prior to the date that the application for leave was made, or the date the foreign divorce took effect.
The courts in England and Wales must then decide if they should get involved. They will consider the following questions in reaching that decision:
- What connection do the parties have with England and Wales?
- What connection do they have with the country where the divorce was granted?
- Do the parties have any connections with any other countries?
- Are there any financial arrangements or benefit which the applicant or a child of the marriage is “likely to receive” as a result of the divorce?
- Have any overseas financial orders or agreements been complied with?
- Could the applicant have applied for financial provision in the country of divorce and, if so, what reasons are there for having not done so?
- Are there assets or property in England and Wales that an order made in this country could relate to?
- To what extent is any order made in this country likely to be enforceable?
- How much time, if any, has elapsed between the foreign divorce and making an application to courts here?
Each application for a financial order in England and Wales after a foreign divorce will have to be decided upon its own facts and merits. Just because you might not be able to respond adequately to one of the above considerations does not mean that you cannot make the application. For example, just because it might be difficult to enforce an English financial order overseas will not automatically mean that the court will refuse to make an order.
If the court is satisfied that it should make an order, then the court will have to decide precisely what order to make.
At this stage, the court will consider the same factors that it would have done had this been a domestic divorce. That means that the welfare of any children of the marriage remains the first consideration for the court followed by the factors found within s25 of the Matrimonial Causes Act 1973.
Essentially, the Matrimonial and Family Proceedings Act 1984 exists to enable:
“The alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in situations where there were substantial connections with England [or Wales]” para 71 Supreme Court decision in Agbaje v Agbaje  UKSC 13
The Matrimonial and Family Proceedings Act 1984 is not an opportunity for a spouse to simply have a second bite of the cherry, or to access what are frequently said to be more generous divorce financial remedy laws in this country.
Previously decided cases have also held that:
- First consideration must be given to the welfare of any children of the marriage (as discussed above);
- It will not be appropriate to order that a spouse using this law should get more than she or he would have received if the divorce itself had been resolved in England and Wales – they might get less or similar provision. A great deal here depends upon the responses to the nine questions considered above and, in particular, the strength of the parties’ connections to England and Wales; and
- The reasonable needs of both parties should be considered, not only the needs of the applicant. Other case law has stated that reasonable needs are to be generously assessed and not limited to the minimum requirement.
If you, or someone you know, is worried about their position following an overseas divorce, then contact one of our specialist family lawyers. You can contact our family law team in Spalding on 01775 842505 or in Nottingham on 0115 945 4425