Where a spouse obtains a divorce abroad and a financial order
settling their finances in an overseas court, it may seem
reasonable to assume that this will be the end of the matter.
However, Part III of the Matrimonial & Family
Proceedings Act 1984 (MFPA 1984) provides the English
court with a discretion to step in (provided certain jurisdictional
requirements are met), and make the same orders as if the divorce
had been granted in England.
Where a begrudging spouse feels that a foreign court order has
provided them with inadequate financial provision on divorce, they
can apply for permission to bring a claim under Part III of the
MFPA 1984, provided one of the following criteria are met: at the
time of the foreign decree, at least one of the parties to the
marriage was 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).
Once permission has been granted, the court will consider two
things, firstly 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, which includes all of the factors that
the court would normally consider at the start of financial relief
proceedings. Such factors include the financial resources of the
parties, the standard of living they enjoyed during the marriage
and their competing financial needs. To the inevitable horror of
the financially stronger party, the English court essentially has
the power to 'revisit' the case and is given recourse to
the full range of remedies it usually has available to it.
Recent case law demonstrates that the English courts have become
increasingly willing to do what some might regard as stepping on
the toes of the orders made by judges in other sovereign states.
For example, in Z v Z and Others  EWHC 911, Roberts
J found it appropriate for the English courts to make a financial
remedy order under Part III of the MFPA 1984 (often colloquially
termed as a 'top up' order) following a Russian divorce,
despite the wife's delay of five years in bringing proceedings
and the existence of a Russian financial order compromising claims
The purpose and political thrust of Part III is to alleviate
adverse consequences on the financially weaker spouse of no, or
inadequate, financial provision being made by a foreign court. As
described above, gaining access to the determination of the English
courts through the 'back door' of Part III of the MFPA 1984
can be a valuable resource for one party to a divorce, given that
the English system of ancillary relief has long been regarded as
one of the most generous in the world. However, the English
court's ability to interfere with financial remedy awards made
abroad is not unfettered, as the parties must have, or have had,
substantial connections with England. However, in cases where the
legal requirements set out in Part III of the MFPA 1984 are
satisfied, the court may allow a spouse a second bite of the
ancillary relief cherry – and the cherries in England are as
sweet and plump as they come.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
With the approaching era of driverless cars and shopping delivery by drone, some have predicted that the role of lawyers will be greatly changed by technological advancements in artificial intelligence.
Leading family lawyer Sharon Ser, alongside professional support lawyer Philippa Hewitt, have recently contributed a chapter on Hong Kong family law to a new guide comparing family law around the world.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).