Each year there are 24,000 divorces heard in the courts in
England and Wales which involve a foreign national. Divorce in
England and Wales is often considered more favourable to women as
it favours the weaker party in the divorce which is frequently the
wife due to having either no income or a smaller income compared to
her husband. However, not in every case.
Should there be a Pre-nuptial Agreement, consideration is given
to the terms of the Agreement on a case by case basis. Also,
maintenance is largely discretionary rather than a fixed formula,
which is seen in other jurisdictions.
Another advantage to the foreign spouse is that should your
divorce have taken place abroad and the financial settlement was
not 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
The criteria to be fulfilled before such an application can be
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
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 and the
language of both jurisdictions to achieve the best possible
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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