The divorce laws across the globe vary considerably and even in the developed world financial settlements in divorce can be extremely one-sided in some countries, particularly with regard to the provision of financial support for women is concerned. The English High Court is in the position, in some circumstances, of being able to step in and vary a financial settlement granted in an overseas divorce and can make a financial settlement order in the same way as if the divorce happened in England, under Part III of the Matrimonial & Family Proceeding Act 1984 (MFPA 1984).
The Act was aimed at redressing an unfair financial arrangement following an overseas divorce where one party has received a settlement that does not adequately reflect either their contribution made in a marriage or a reasonable division of assets or simply is not deemed sufficient in light of the parties circumstances. It is important to consider the jurisdiction when contemplating divorce as a divorce overseas can leave one party struggling with language difficulties, additional travel, lack of funds or the ability to find bi-lingual representation and bias that can be displayed in the courts of some countries towards their own nationals or those with a dominant masculine culture that appears to favour one gender over another. Also, different jurisdictions do not all have the capacity to rule on overseas assets, such as property, nor do they have the ability to force a party to provide full disclosure of their assets and pensions are unable to be shared sometimes. Often, even if there is a reasonable settlement the foreign court has ineffective powers of enforcement. In such cases, the English High Court's discretionary powers can offer a lifeline to the disadvantaged party and provide a fairer financial settlement.
The lawyers in Giambrone's family team strongly emphasise that your case must be comprehensive and meticulously prepared with all relevant information included. The multi-lingual and multi-jurisdictional lawyers in Giambrone have extensive experience in dealing with complex cross-border matrimonial cases. A detailed statement in support of the application must be prepared, the English High Court will not support claims with little or no merit and there is a filter mechanism, outlined below.
There are some reasonably stringent criteria to be fulfilled before such an application can be made and the filter mechanism in place to prevent spurious claims:
- 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).
- The marriage must have been recognised under English law.
- The divorce must have taken place overseas.
- The applicant is barred from making an application if they have remarried.
The application is made in two stages, (applying the filter mechanism), initially an application is made for leave to apply for a variation of the financial settlement 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 will then go on to consider all of the circumstances of the case in much the same way as if the divorce had been obtained in England and Wales. All the relevant factors that the court would normally consider at the start of financial relief proceedings are presented, including the financial resources of both 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 would usually have available.
An application of this nature is frequently resisted by the Respondent and frequently appeals the granting of leave, which inevitably brings rising costs, delays and sometimes litigation before the question of revised appropriate financial provision can be considered. The Supreme Court eventually concluded that action had to be taken to prevent the waste of costs, court time and applications to set aside by the Respondent that 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 situation.
The English ancillary relief system (financial settlements in divorce matters) attempts to bring fairness to divorce settlements and appears to favour the financially weaker party. Giambrone has assisted a considerable number of individuals with regard to their cross-border matrimonial issues and enjoys a high level of success in gaining first-rate settlements for our clients.
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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.