Can I make a financial claim in England?
If you have commenced overseas divorce proceedings, it is ordinarily appropriate for that foreign jurisdiction to address any financial claims either party may have under its own matrimonial law. If you have obtained a financial settlement arising from the overseas divorce, it is still possible for the English court to make an order for financial remedy ancillary to the foreign award. This is most likely applicable where the foreign jurisdiction could not make any financial provision or where the financial provision made has been inadequate. Another circumstance is where a pension sharing order is made abroad in respect of a British pension. Often, the British pension provider will require a supporting order from the English court to implement the order made abroad
How do I make a financial claim application after divorce?
In limited circumstances, an application is possible under Part III Matrimonial and Family Proceedings Act 1984. These are often known as Part III applications, distinct from family proceedings where there has not been an overseas divorce. It should be highlighted that these applications are quite rare as the English court is reluctant to be viewed as providing a ‘second bite of the cherry’ for people who are unhappy with their foreign based settlement. However, given the transnational lives many people are now living, they do appear to be cropping up with increasing regularity than previously encountered.
By their very nature, these applications need to heavily front-loaded providing as much information to the court as possible at the earliest opportunity. This is since permission must firstly be obtained from the court to have it consider the merits of the proposed application. A detailed narrative of the parties’ marriage, the foreign proceedings, and justification for the application in England are essential. If the party had solicitors in the foreign proceedings, it could assist to liaise with that solicitor in preparation of the application. It will not be sufficient to provide a bare bones initial application in the hope of beefing it up and disclosing relevant supporting documentation later in the proceedings. Such an application will inevitably falter at the initial hurdle.
Financial provision on divorce: what is the legal process?
There are specific basic criteria that applications must satisfy, namely:
- The parties are divorced;
- The divorce is recognised in England; and
- The applicant has not remarried;
The following jurisdictional requirements must also be satisfied:
- Domicile; or
- Habitual residence; or
- The matrimonial home is in England or Wales.
Financial claim process
The application itself is a two-stage process. As the first stage, permission must be obtained from the court. This is done by issuing an application with the High Court in London. The initial hearing can be heard remotely which is helpful as often such cases will involve people spending time abroad. In order to obtain permission, one must sufficiently satisfy the court that there are “substantial grounds” for the application. Significant and often used examples include:
- What is the parties’ connection with England;
- What is the parties’ connection with the country of the foreign divorce or any other countries;
- Where are the parties’ income and assets based, particularly where is the family home located;
- Where are any children based;
- What foreign financial settlement was made and what factors could that court take into consideration as part of its judgment;
- When did the foreign divorce take place;
- The enforceability of the foreign financial settlement.
Provided permission is granted, proceedings will move to the second stage. At this time, proceedings will take place by and large as if they are standard matrimonial proceedings.
What are the benefits of making such a financial claim?
The English court can make:
- A final financial order ancillary to the foreign settlement;
- An order in respect of property, capital assets & liabilities, maintenance, and pensions;
- A legal services order or interim maintenance order; and
- A freezing order or similar protective orders.
Can I enforce the English order in another foreign country?
In short, it depends. It is common for such cases to address assets in different countries. Any order made will be enforceable in England and in certain other foreign jurisdictions. Following the UK’s withdrawal from the EU, the ability to enforce a Part III order abroad has changed. They remain enforceable in certain EU and non-EU countries. Careful consideration will need to be given to the location of the matrimonial finances at the outset to ensure any Part III order made can be realised through the English court or that of another country.
If you need to discuss any of the issues raised in this article please get in touch with the team at Rayden Solicitors.