The English High Court offers a Second Opportunity for a
Fair Financial Settlement to Spouses divorced abroad under
Part III of the Matrimonial & Family Proceedings Act 1984
Cross-border divorce raises unique issues, not the least being
where to actually initiate divorce proceedings. Often an
individual will return to their country of origin for the divorce,
despite being domiciled in the UK. Once the divorce has been
obtained and the finances settled it would not be unreasonable to
assume that the matter has come to an end. However, this is
not necessarily the case, Part III of the Matrimonial & Family
Proceeding Act 1984 (MFPA 1984) has a provision which permits an
English court discretionary powers to step in and make financial
orders in the same way as if the divorce had been granted in
England providing particular requirements regarding jurisdiction
The Act was intended to offer fairness to the ever enlarging
number of families undergoing international divorces, providing for
individuals with a connection to England and Wales who find that
the difficulties thrown up by their overseas divorce, for example
when distance, language difficulties, lack of funds for
representation aboard, perceived bias towards nationals or men,
inability to obtain disclosure or enforcement of orders has
resulted in a poor financial outcome. The Act can offer a
lifeline and can be used to redress the balance. An
application can be made before the High Court of England and Wales
for a fairer financial arrangement.
There are certain criteria to be fulfilled before such an
application can be made:
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
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.
It will be no surprise to learn that the Respondent frequently
resists the procedure by appealing the granting of leave, which
inevitably involves costs, delays and litigation before
the question of revised appropriate financial provision can be
considered. Such activity has caused a review by the
Supreme Court which concluded that action had to be taken to
prevent waste of costs, court time and applications to set aside
which have little merit and have scant chance of
success. The Supreme Court further indicated that the
principal objective of the filter mechanism is to prevent
wholly unmeritorious claims being pursued to oppress or use as
a threat to a partner. The Supreme Court made several
other observations and recommendations to manage the
Recent case law, outlined below, provides an example of how the
Act can be applied and shows that the English courts are not afraid
of over-riding orders made by judges in other countries.
In the case of Z v Z and Others
 EWHC 911. A Russian divorce, where despite
the wife taking five years to bring the proceedings in which to
attempt to over-ride the Russian financial order compromising
claims worldwide, the English judge found that it was appropriate
for the court to make a financial remedy order under Part 111 of
the MFPA 1984 even in the face of the existence of the Russian
The English ancillary relief system (financial settlements in
divorce matters) is popularly believed to be one of the most
generous in the world, leading to London being considered the
divorce capital of the world. Furthermore, the use of Part
III of the MFPA 1984 is often regarded as a "back door"
remedy for foreign nationals who live in England and Wales who feel
that they have been badly treated in the overseas court. The
Act offers a second opportunity for a spouse to receive a fairer
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.
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