Type ‘divorce capital of the world’ into any search engine and you’ll be told that London has earned this moniker. Financial orders on divorce can often be more generous here than in other parts of the world. The reasons are beyond the scope of this article, but not all jurisdictions are as generous to the economically weaker spouse. The Family courts here in England and Wales must ensure that post-divorce neither party will be in a position of financial need. However, division of assets on divorce is dealt with differently in other jurisdictions and can (in some circumstances) lead to an outcome that would not be considered ‘fair’ in England and Wales. In such situations, Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA) can assist.
The statutory purpose of the MFPA is to alleviate hardship in cases of foreign divorce. Before such application can be made, the Family courts of England and Wales must grant permission. The court must find that there is substantial ground for making an application and whilst the Act doesn’t define what is meant by ‘substantial’, there is guidance from the Supreme Court. The case of Agbaje v Agbaje  UKSC 13 sets out that the threshold for bringing an application is not high but is higher than a 'good arguable case' and is 'solid'. In addition, the court will consider:
- The parties’ connections with England and Wales, the country in which their marriage was dissolved and any other countries;
- Any financial benefit already received (or due to be received) by the applicant under an agreement in a country outside of England and Wales;
- Any right the applicant has to apply for financial relief in any country other than England and Wales (and the reason for them not doing so);
- Any property available in England and Wales which the court could use to provide financial relief to the applicant;
- The likelihood of an order made under that Act being enforceable; and
- The length of time that has passed since the divorce.
The court will evaluate the overall merits of the case before deciding whether permission will be allowed. Should permission be granted, the court can make an interim order for maintenance to be paid by the respondent to the applicant where it appears that the applicant (or any child of the family) is in need of immediate financial assistance.
If permission to make an application is granted, the applicant must follow the normal procedure for bringing a financial remedy application on divorce. This typically involves the exchange of financial disclosure, attendance at a Financial Dispute Resolution Hearing and (if the case doesn’t settle) a final hearing. The purpose of the procedure is to provide the court with the information it needs to decide whether to grant further financial relief to the applicant to that which may have been made abroad. There is little guidance regarding what is ‘appropriate’, but the court is asked to approach the matter broadly and bear in mind that the purpose of the MFPA is to alleviate hardship after divorce abroad.
The court has broad discretion but must have regard to all the circumstances of the case, with their first consideration being the welfare of any minor child of the family. It must also apply the factors set out at section 25 of the Matrimonial Causes Act 1973 (MCA), which include the financial resources available to the parties, the standard of living during the marriage, the age of the parties and the duration of the marriage. If the court decides an order is appropriate, those orders can include a lump sum, spousal maintenance, a transfer of property and/or any pension to be shared. However, if the parties’ only link to this jurisdiction is the presence of a property here that was the matrimonial home, the court can only order a lump sum or sale/transfer of the property.
The process under the MFPA can be a long and complicated one, but where an applicant has been left in need after a foreign divorce, it can be a real lifeline.
Please contact Jessica Keal for further information on how Simkins can help.