Our article in December (read here) examined the preliminary issues that must be considered when applying for financial relief after a foreign divorce under Part III of the Matrimonial and Family Proceedings Act 1984 ("MFPA 1984") and the application for permission to bring a substantive application. This article focuses on the interim orders that the court can make and the substantive application.
Maintenance and legal costs funding
It is first important to note that the court does have jurisdiction to make interim orders for maintenance for either the applicant or a child of the family under s 14 of the MFPA 1984, where it has granted permission for a substantive application and where it appears to the court that the applicant or any child of the family is in “immediate need of financial assistance”. However, this does not apply if the ground for jurisdiction is based on a beneficial interest in matrimonial home in England and Wales (see last month's column).
The inclusion of the words “immediate need of financial assistance” in the statute has raised the question of whether the applicant has to reach a higher hurdle in order for the court to make an order under the provision of the MFPA 1984 than the equivalent provisions in s 22 of the Matrimonial Causes Act 1973. The issue was considered by Eleanor King J (as she then was) in M v M (Financial Provision)  EWHC 2817 (Fam),  1 FLR 1773 who concluded that the same approach applied under both statutes, and that “the word “immediate” should be construed to mean “current” as opposed to “urgent”.
An order for interim maintenance may include an allowance for legal costs, but only if the party seeking the order has demonstrated the following:
- The applicant's own assets cannot be reasonably deployed to pay legal fees, and
- Legal advice and representation cannot be procured by any other means.
As very recently demonstrated by the case of Xanthopoulus v Rakshina  EWFC 158, this can also include legal costs to pursue an appeal.
Under s 23(2) of the MFPA 1984, if permission for a substantive application has been granted, and if it appears that a party to the marriage is about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, and with the intention of defeating a claim for financial relief, the court may make an order restraining that party from taking such action.
Is England and Wales the appropriate venue?
Section 16 of the MFPA 1984 requires the court to consider whether England and Wales is the appropriate venue for the financial application. The statute sets out particular issues that the court must consider, as follows:
- The connection which the parties to the marriage have with England and Wales,
- The connection which those parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated,
- The connection which those parties have with any other country outside England and Wales,
- Any financial benefit which 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 the operation of the law of a country outside England and Wales,
- In a case 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 which 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 under this Part of this Act in favour of the applicant could be made,
- The extent to which any order made under this Part of this Act is likely to be enforceable, and
- The length of time which has elapsed since the date of the divorce, annulment or legal separation.
If England and Wales is not the appropriate venue, then the application should be dismissed. If, however, the court concludes that it is appropriate to make an order, it will move on to consider the provision that should be made.
What orders can the court make?
Section 17 sets out the types of financial order which can be made if the court decides to grant financial relief, which are the same as may be made after an English divorce. However, it is important to note that where jurisdiction is based on the matrimonial home, the court cannot make maintenance orders and any capital order cannot exceed the value of the interest in the matrimonial home (taking into account any costs of sale and/or mortgage).
What orders should the court make?
Under the provisions of the MFPA 1984, s 18 provides that the court must:
- Have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and
- Have regard to the same statutory factors as in a financial claim after an English divorce.
An additional consideration under the MFPA 1984, s 18(6) is that where an order has been made by a court outside England and Wales, the court in considering the financial resources of the other party to the marriage or child of the family shall have regard to the extent to which that order has been complied with or is likely to be complied with.
In addition to the statute, guidance on the proper approach to Part III applications was given by Lord Collins in Agbaje v Agbaje  UKSC 13,  1 FLR 1813 where it was made clear that the court has a broad discretion subject to three general principles:
- Primary consideration must be given to the welfare of any child of the marriage,
- It would never be appropriate to make an order giving the claimant more in total than the English court would have awarded if all the proceedings had taken place in England,
- Where possible, the order should have the result that provision was made for the reasonable needs of the spouse. Where the English connections are very strong, there might be reason for the application to be treated as though it were made in purely English proceedings. The Supreme Court also said that the MFPA 1984 should not be used to obtain a "second bite of the cherry".
Lord Collins also made clear that:
- The legislative purpose is to alleviate the adverse consequence of no, or no adequate financial provision having been made by a foreign court in a situation where there are substantial connections with England.
- The duties under s 16 and s 17 together impose two interrelated duties, ie to consider whether “in all the circumstances of the case” England and Wales is an appropriate venue and, secondly, whether an order should be made “having regard to all the circumstances” including the matters in s 25(2)(a)–(h) of the Matrimonial Causes Act 1973.
- Part III cannot be used to "top up" foreign provision in order to make it equate to an English award; it follows that mere disparity will be insufficient to 'trigger' the application of Part III.
- No element of exceptionality is required and neither injustice nor hardships are preconditions. The order need not be the minimum amount required to avoid injustice.
The court's broad discretion
Subject to these principles, the court has a broad discretion. Where the connection with England is very strong, the case may be approached as if it were an English divorce. If, on the other hand, the connection is weak, and the applicant has received adequate provision from the foreign court, Part III will not allow that former spouse to "top up" that provision to that which would have been ordered further to an English divorce. As made clear by Lady Justice King in Zimina v Zimin  EWCA Civ 1429, the court should not “fall into the trap of judging the adequacy of the provision by reference solely to what order would have been made by an English court”.
At the time of writing, the Court of Appeal are shortly due to consider the former husband's appeal from the decision of Sir Jonathan Cohen in Xanthopoulos v Rakshina  EWFC 50, so further guidance may well be forthcoming.
Please note this content was originally published in the Family Law Journal December 2023 edition, best practice section.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2024