The courts in England and Wales hear nearly 25,000 divorces which involve a foreign national. Divorce in England and Wales can be more favourable to women as the English courts tend to favour the weaker party in the divorce. The weaker party is frequently the wife due to having either no income or a smaller income compared to her husband.
There is a further advantage for the foreign spouse, even when your divorce has taken place abroad should the financial settlement not be entirely fair, perhaps due to cultural bias towards men or lack of funds to enable proper representation, Part III of the Matrimonial & Family Proceeding Act 1984 (MFPA 1984) provides an opportunity, as long as all the necessary provisions are met by the applicant, to vary the financial arrangements to make a fairer settlement to the party who may be considered to have received less than they should.
There are a number of considerations, should there be a pre-nuptial agreement, and weight is given to the terms of the agreement on a case by case basis. A prenuptial agreement is regarded as a significant indication of the attitude of the divorcing couple and their view as to what is a fair financial arrangement. Also, it has to be remembered that in England & Wales maintenance is largely discretionary rather than a fixed formula, which is seen in other jurisdictions.
There are criteria to be fulfilled before such an application can be made are:
- at the time of the foreign decree, at least one of the parties to the marriage must have been domiciled in England and Wales, or,
- at least one of the parties was habitually resident in England and Wales for one year preceding the application or decree, or,
- at least one of the parties is entitled to a beneficial interest in a property in England and Wales that was once the matrimonial home (in which case the court is confined to dealing with the property in question only).
The application is made in two stages, known as the filter mechanism, in the first place an application is made for leave under s.13 and R3.17 FPR. The court must consider two things once permission has been granted:
- First, whether it is appropriate for a UK court to make the order the applicant is seeking.
- If the answer is “yes” the court goes on to consider all of the circumstances of the case, including all the relevant factors that the court would normally consider at the start of financial relief proceedings. Including the financial resources of the parties, the standard of living they enjoyed during the marriage and their competing financial needs. The English court has the power to ‘revisit’ the case and is given recourse to the full range of remedies the court usually has available to it.
The generosity of the English courts makes the UK a highly popular destination for divorce. However, it is extremely important to be represented by a legal team that has knowledge of both jurisdictions and also is bi-lingual to achieve the best possible outcome.
It is highly possible that the divorce law in England and Wales will be amended to make way for a “no-fault” divorce; the current law has been in place since the Matrimonial Causes Act 1973 and there have been calls for its reform for some considerable time. Especially since the situation that arose in the case of Hugh and Tina Owens where the judge was unable to grant a divorce due to the fact that Mrs. Owens evidence of unreasonable behaviour was not sufficiently compelling, despite the fact that the couple had been separated since 2015 and Mrs. Owens had committed adultery. Had Mr. Owens decided to divorce Mrs. Owens these grounds would have been acceptable, however, he wished to remain married and contested her application saying the couple still had a “few years” left to enjoy together. The need to find for a ground for divorce forces couples into needless conflict, even when there is a desire on both sides to end the marriage, and the case for reducing the acrimony in divorce is strong.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.