Financial orders in England and Wales after an overseas divorce

Insight

28.12.2023

Never far from the headlines, Part III of the Matrimonial and Family Proceedings Act 1984 (known as Part III) enables those who have been divorced overseas to apply for financial provision in England and Wales. Whether it is considered an important safeguard or simply mechanism for divorce tourism, these cases will continue to feature in matrimonial finance practice and a clear understanding of the principles and the procedure is therefore important for practitioners.

This column will consider some preliminary matters that must be considered before an application is embarked upon, who can bring an application, and the application for permission to bring Part III proceedings. Next month we will move on to the substantive application.

There are a number of matters to consider at the outset.

Was there a legal marriage?

There must have been a valid or void marriage, recognised by English law. Where the marriage has taken place abroad, it must have taken place in compliance with the law of the jurisdiction in which it was celebrated. A nonmarriage will not suffice, as demonstrated by the case of Dukali v Lamrani (Attorney-General Intervening) [2012] EWHC 1748, [2012] 2 FLR 1099, where a Moroccan civil ceremony of marriage at the Moroccan Consulate in London, which was a valid marriage under Moroccan law, was found to be a non-marriage under English law, with the result that the wife was unable to claim relief under Part III following a Moroccan divorce.

Was there an "overseas" divorce, annulment or separation by proceedings?

Although the answer to this may seem obvious, it is important to note that an "overseas" country is specifically defined as any country other than the UK, the Channel Islands and the Isle of Man (see s 27, MFPA 1984; Sch 1, Interpretation Act 1978). This was why in MWH v GSH [2019] EWHC 3866 (Fam), [2020] 2 FLR 71, Cohen J struck out the wife's application under Part III for a pension sharing order following a divorce in Jersey.

Was the overseas divorce, annulment or separation by proceedings entitled to recognition under English law?

The overseas divorce (or annulment or legal separation) must have been by "judicial or other proceedings" and must be "entitled to be recognised as valid" in this country. Although English law recognises both proceedings and nonproceedings divorce under s 46 of the Family Law Act 1986, applications under Part III can only be made where the overseas divorce (or annulment or legal separation) derives from proceedings (see s 12(1)(a), MFPA 1984).

An overseas divorce, annulment or legal separation obtained by proceedings is recognised as valid in England, where:

a. it is effective under the law of the country in which it was obtained; and

b. at the date of the commencement of the proceedings, either party to the marriage was:

– habitually resident in that country;
– domiciled in that country; or
– a national of that country.

The question whether a talaq pronounced before an Egyptian judge was a proceedings divorce was considered in MET v HAT (Interim Maintenance) (No 2) [2014] EWHC 717, [2015] 1 FLR 576. It was found to be a valid proceedings divorce, and therefore the wife was able to bring a claim under Part III.

Has the applicant remarried?

If an applicant has remarried, they will not be able to make a claim under Part III.

The jurisdictional requirements for a Part III claim are set out in s 15(1) of the MFPA 1984. They are that either
party:

1. is or was at the time of the foreign decree domiciled in England and Wales; or

2. was habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave, or the date when the foreign divorce, annulment or legal separation took effect; or

3. has, or had at the time of the application, a beneficial interest in possession in a dwelling-house in England or Wales that was at some time during the marriage a matrimonial home of the parties.

It is important to note that where jurisdiction is claimed through (3) above, the court is confined to dealing with the property in question or its value (s 20 of the MFPA 1984 and Aldoukhi v Abdullah [2021] EWHC 3086 (Fam), [2022] 2 FLR 1139).

Before the substantive application can be made, the applicant must first apply for permission to bring their application.

The test

The court may not grant permission unless it considers there is substantial ground for making an application (s13(1) of the MFPA 1984). The statute does not define the meaning of substantial, but the Supreme Court provided guidance in the case of Agbaje v Agbaje [2010] UKSC 13, [2009] 1 FLR 987, (Lord Collins at paras [32]–[33]):

'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”.'

Therefore, the permission application is not a "rigorous evaluation" (Traversa v Freddi [2011] EWCA Civ 81, [2011] 2 FLR 272); the court takes no more than a preliminary overview designed to filter claims that have no merit.

Conditional permission

Permission to pursue a substantive application may be made subject to conditions the court thinks fit. This might include limiting an application to a particular form of financial order that the foreign jurisdiction had been unable to make, like a pension sharing order, or narrowing the issues in the case. In Agbaje permission was given subject to a number of conditions, including that findings of fact made in the Nigerian proceedings would stand in the English proceedings.

Form of application

The application for permission is made in Form D50E and the draft order should be prepared according to standard order 2.3. If the applicant is seeking the allocation of the case to a judge of High Court level (see below), the applicant must also complete and file with the application an Allocation questionnaire FRC3, (see Sch 3 of the Good Practice Protocol for the Financial Remedies Court), modified for the overseas divorce and make a written request that the gatekeeper allocate the case to that level of judge.

Allocation

Proceedings under Part III, whether relating to the permission application or the substantive application, should be allocated to a district judge (para 25(a), President's Guidance of 24 May 2021).

Further, if the case is complex or of very high value, and the applicant considers that the permission application should be heard by a judge of High Court level, then the applicant must file the additional documents referred to above (para 25(c), President's Guidance of 24 May 2021).

Ex parte or on notice

Rule 8.25 of the FPR 2010 requires the application for leave to be made without notice to the other party and states that the court will then either determine the application, or direct that the application be determined on notice, if appropriate.

However, where an applicant has asked for an allocation to the High Court, but the gatekeeper does not agree, they must determine on allocation whether the case is sufficiently complex or borderline to warrant the permission hearing being heard on notice (para 25d of the President's Guidance 2021).

This followed the Court of Appeal's judgment in Potanina v Potanin [2021] EWCA Civ 702, [2021] 2 FLR 1457 which stated that there should be "greater use of inter partes hearings at the leave stage" notwithstanding FPR, r 8.25.

If the gatekeeper has acceded to a request that the application is sufficiently complex to justify being allocated to High Court judge level then the question whether the permission application should be heard on notice should be remitted to the judge in charge of the money list for cases proceeding in London or the South-Eastern circuit, or to the relevant Family Division Liaison Judge for cases proceeding elsewhere.

If the permission hearing is heard ex parte, there will be a high duty of candour on the applicant – the applicant must point out the problems in their case, as well as the points upon which they rely.

In Agbaje the Supreme Court made clear that respondents to an application under Part III should be discouraged
from seeking to overturn an order granting permission:

"In an application under section 13, unless it is clear that the respondent can deliver a knock-out blow, the court should use its case management powers to adjourn any application to set aside to be heard with the substantive application."

In Potanina v Potanin [2021] EWCA Civ 702, [2021] 2 FLR 1457 the Court of Appeal set aside Cohen J's order which itself set aside the applicant's permission to bring her application under Part III. King LJ held that Cohen J should have conducted a 'short, sharp application to set aside leave on the basis that there was a “knock-out blow”', such as a decisive authority being overlooked or the court being misled, rather than the 2-day set aside hearing that took place. However, the respondent's appeal to the Supreme Court will be heard on 31 October 2023, and it is therefore an area which may soon be developed further.

Click here to read part two of this article which focuses on the interim orders that the court can make and the substantive application.