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If you have already been divorced abroad and obtained no financial settlement or the financial settlement made in the other country was inadequate, you may be able to apply to the English Court for a financial settlement order against your former spouse. 

The English family courts have the ability to grant divorce financial provision even though a divorce may have been previously pronounced abroad and financial provision already made. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision made on divorce by a foreign court in a situation where the parties had substantial connections with England.

There are still some appalling injustices in some countries abroad which is where the English legislation helps to redress some of these cases. It is an opportunity for fairness and justice for some international families. Part III proceedings can also usefully be used where the law of the country where the divorce occurred does not allow orders to be made in respect of offshore property. It can also be used to obtain a pension sharing order in respect of an English pension in circumstances where other issues are dealt with in the foreign divorce and a foreign divorce pension sharing order will have no validity for the English pension company.

However, it is not for England to act as a court of appeal of other countries with similar approaches to England. Neither is it an opportunity to have two ‘bites of the cherry’.

Where the connection with England is strong, it may be appropriate for there to be such provision as would have been made had the divorce been in England. Where the connection is not so strong and there has already been adequate provision, it will not be appropriate for Part III to be used as a simple "top up".

In practice, an application for financial relief after overseas is most likely to become a viable way to proceed in cases where the foreign divorce was in a jurisdiction where the courts:

  • do not have jurisdiction over foreign property;
  • have no, or under-developed, mechanisms to force financial disclosure;
  • demonstrate favouritism towards nationals over expat spouses;
  • have no mechanism to share pensions;
  • demonstrate favouritism towards those of one religion over another; or
  • have no or under-developed mechanisms to enforce agreements and orders.

What Is The Procedure To Apply For Divorce Financial Settlement In England After A Foreign Divorce?

It is a two-step process.

First Stage: Permission Stage

First, the Court’s permission must be obtained to make an application for a financial award. The process begins with a without notice application for permission to proceed. The applicant must show that they have a 'substantial ground' for the application to proceed. The permission stage is designed to filter out weak applications before the respondent is put to the significant costs of defending an application that may be fatally flawed or have little merit.

At the permission stage the applicant must be able to show that they satisfy the jurisdictional requirements and that the legal test set out in in the leading case of Agbaje v Agbaje [2010] has been met.  The threshold is not high but higher than a "good arguable case".

What Are The Jurisdiction Requirements?

In the main case on this area of the law, Agbaje v Agbaje which was heard by the Supreme Court in 2010, the Court said that the purpose of such further settlement is:

“the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England”.

In order to bring a claim in England, the parties must have sufficient connection to England as follows:

  • Either party is domiciled in England and Wales at the time of the foreign divorce or at the time of the application; or
  • Either party has been habitually resident in England and Wales for 12 months at the time of the foreign divorce or at the time of the application; or
  • One party has an interest in a dwelling house in England and Wales which had been a matrimonial home (when claims are limited to the value of the house);
  • Other narrow criteria following recent EU legislation.

What Are The Legal Requirements As Set Out In Agbaje v Agbaje?

For Part III proceedings to initiate in England, both the marriage as well as divorce must be legally recognised and valid under English law. Part III proceedings can only be brought if the applicant has not remarried.

The legal test on an application for permission is set out at paragraph 33 of Agbaje:

"... 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'."

Further guidance can be found in Traversa v Freddi [2011] at paragraph 30 and 31:

"It is clear that the section 13 filter is there to exclude plainly unmeritorious cases and, although, in the evaluation of substance, regard must be paid to overall merits, it does not call for a rigorous evaluation of all the circumstances that would be considered once the application has passed through the filter.

At the hearing of the section 13 application the judge will of course be conscious of the fact that, once through the filter, the applicant will have to clear a number of fences that the following sections erect. Unless it is obvious that the applicant will fall at one or more of the fences, his performance at each is better left to the evaluation of the trial judge."

What Factors Are Taken Into Account By The Court For A Claim Under Part III?

Followring are the factors that the judge must take into account when assessing whether the applicant has satisfied the legal test set out in Agbaje are detailed in s16(2), MFPA 1984:

  • the connection that the parties to the marriage have with:
    • England and Wales;
    • the country in which the marriage was dissolved or annulled, or in which they were legally separated; and
    • any other country outside England and Wales;
  • any financial benefit that the applicant, or a child of the family, has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or operation of the law of a country outside England and Wales;
  • where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;
  • any right that the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales, and, if the applicant has omitted to exercise that right, the reason for that omission;
  • the availability in England and Wales of any property in respect of which an order in favour of the applicant could be made;
  • the extent to which any order made is likely to be enforceable; and
  • the length of time that has elapsed since the date of the divorce.

The application for permission must be supported by a very detailed personal statement in support of the Application. Such supporting statement of the Applicant should meticulously address:

  • the background of the case,
  • why both the marriage and the foreign divorce is entitled to be recognised as valid in England & Wales; and
  • how the jurisdictional requirements are satisfied.

The statement should demonstrate that the merits tests set out in the legislation and case law have been met. Where available, very full documentary evidence should be exhibited to the statement. The statement in support of the application is also a good opportunity to discuss in detail the overall merits of the case beyond the application for permission.

The court must take into account the financial benefit that has been, or is likely to be, received in the foreign jurisdiction, and if the applicant has the right to apply for relief, and reason why that right has not been exercised. These factors cannot properly be addressed without evidence as to the law of the foreign jurisdiction. The applicant should therefore consider obtaining a short expert report from a specialist in the relevant jurisdiction to be attached to their statement in support of their application for permission.

Second Stage (Divorce Financial Settlement Proceedings After Grant Of Permission)

Once permission has been granted to issue an application under the MFPA 1984, Part III, the financial timetable applied for financial settlement proceedings will be as if the case were to be dealt with under the Matrimonial Causes Act 1973/CPA 2004 for a UK divorce settlement case. The procedure is governed by the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Part 9. READ MORE

How Much Sunrise Solicitors Charge For Financial Settlement After An Overseas Divorce?

Our Fixed Fees For Financial Settlement After An Overseas Divorce

Our fixed fees for various stages of the financial settlement proceedings after an overseas divorce are given in the table below. The agreed fixed fee will be dependent on the volume of work involved in the case and the complexity of the matter. Please be advised that our fixed fees do not cover the court fees and the Barrister's fees.

Casework Stage Fixed Fee Range (Acting For The Petitioner) Fixed Fee Range (Acting For The Respondent)
Preparing and filing an application for permission to apply for financial settlement after an overseas divorce. All the work until decision on the permission application is covered. From £800 + VAT To £1,200 + VAT From £600 + VAT To £1,000 + VAT

All the work from grant of permission until First Appointment Hearing which includes the following:

  • preparing and filing an application for financial order after an overseas divorce;
  • complying with the court directions;
  • completion of Form E;
  • preparation of Questionnaires and Chronology;
  • preparation for First Appointment Hearing;
  • attending the family court for First Appointment Hearing to assist the Barrister in the case.
 From £2,000 + VAT To £3,000 + VAT From £1,500 + VAT To £2,500 + VAT

Preparation for First Dispute Resolution (FDR) Hearing which includes the following:

  • replying to the Questionnaire;
  • complying with the court directions;
  • assisting with valuation of properties, if applicable;
  • negotiations and offers;
  • preparation of court bundles, where acting for the petitioner;
  • attending the family court for First Dispute Resolution (FDR) Hearing to assist the Barrister in the case.
From £3000 + VAT To £4,000 + VAT From £2,500 + VAT To £3,500 + VAT

Preparation for Final Heaaring which includes the following:

  • complying with court directions;
  • preparing any witness statements;
  • instructing and briefing the Barrister for the court hearing;
  • attending any pre-hearing conference with the barrister, where necessary;
  • making necessary preparations for the final hearing;
  • attending the family court for Final Hearing to assist the Barrister in the case.
From £4,000 + VAT To £5,000 + VAT From £4,000 + VAT To £5,000 + VAT

Our Hourly Rates For Financial Settlement After An Overseas Divorce

  • Our team of divorce & family law solicitors will charge on hourly rate basis with hourly rate starting from £120 + VAT per hour in relation to your financial settlement proceedings after an overseas divorce. The agreed hourly rate will be dependent on the complexity of the matter.

How Much Is The Court Fee For Divorce Financial Settlement?

  • The court fee for filing divorce financial settlement application in the family court is £255.  Petitioners with very low income may qualify for court fee exemption.