The divorce settlement will normally be dealt with by the courts of the country where the divorce took place, but what if one party does not receive a satisfactory settlement following an overseas divorce? Can they then turn to our courts for help?
The answer is that they may be able to do so.
Obviously, the courts of one country will not usually interfere with the decisions of courts in another country. However, back in 1984 parliament was sufficiently concerned about the possibility of someone being left destitute by the failure of a foreign legal system to make financial provision for them that it enacted Part III of the Matrimonial and Family Proceedings Act 1984.
Financial relief after overseas divorce
Part III gives the courts of England and Wales the power to make financial orders following an overseas divorce, similar to the sort of orders that can be made on a divorce in England and Wales.
But the power can only be exercised if certain conditions are established.
Firstly, the divorce must be recognised as valid in England and Wales.
Secondly, the party seeking relief must not have remarried.
Thirdly, the party wishing to apply for relief must first obtain the leave of the court to make the application. The court will not grant leave unless it considers that there is substantial ground for the making of an application.
Lastly, the court will only have jurisdiction to make an order under Part III in one of three circumstances. These are essentially: where either of the parties to the marriage was domiciled in England and Wales on the date of the application; where 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 where one of the parties has an interest in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties.
If the court can exercise the power under Part III it will decide upon what order to make in a similar way to how it would make that decision following a divorce here.
However, before the court makes that decision it must first be satisfied that it would be appropriate for such an order to be made by a court in England and Wales.
In considering this, the court must have particular regard to a number of matters, including: the connection which the parties have with England and Wales; the connection which the parties have with the country in which the marriage was dissolved; any financial benefit which the applicant has received in consequence of the divorce; the availability in England and Wales of any property in respect of which an order in favour of the applicant could be made; and the extent to which any order is likely to be enforceable.
It should be noted that the mere fact that the courts here may be likely to make a more generous order would not alone be sufficient to make it appropriate for an order to be made by a court in England and Wales.
Part III in action
The way that Part III may be used was demonstrated in a recently reported case that took place in the Central Family Court in London last May.
The case concerned an application under Part III by the wife, following a divorce in New Zealand.
In the course of the marriage the parties had lived in a property in England, between 2006 and 2009. The property had been owned by the husband. The judge in New Zealand held that she had no jurisdiction to make an order in respect of the property, hence the wife’s application here under Part III.
In the course of the proceedings the property was sold, with the net proceeds amounting to some £1.2 million.
Obviously, the court here had jurisdiction to entertain the wife’s application, as the property had been used as the matrimonial home.
And clearly, it would be appropriate for the court here to make an order, limited to the proceeds of sale – an order that would obviously be enforceable.
The only decision remaining, therefore, was: how should the proceeds be divided?
The judge decided the case on the basis of the wife’s needs. She found that the wife needed some £564,000, mostly to meet her housing needs, and therefore awarded her that sum. This was less than 50% of the net value of the matrimonial home, but the judge considered this to be appropriate, as it reflected both the short time lived in the property by the parties, and the fact that it was owned by the husband prior to the commencement of the relationship.
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