The current way of living due to the coronavirus pandemic appears to have heightened the tensions felt within a number of marriages which has subsequently resulted in a greater number of couples filing for divorce. In the cases of marriages where the parties are not the same nationality there is an option of separate jurisdictions in which to divorce. Many couples feel a degree of urgency when the decision to divorce has been made and the question of where to divorce is not properly considered. Different jurisdictions frequently have entirely different approaches, in some cases there appears to be enshrined bias towards one party and a spouse who has been divorced overseas finds that the final settlement has left them at a financial disadvantage.
The courts of England and Wales have provision under Part III of the Matrimonial and Family Proceedings Act 1984 to vary a financial settlement for a spouse who divorced overseas where the final settlement has caused them to suffer hardship by reason of their foreign divorce where and there is sufficient connection to England and Wales, such as habitual residence or domicile in England and Wales. Should this be the case the disadvantaged spouse may be able to access the remedies available in the English courts aimed at revising a divorce settlement that is perceived to be biased. The legislation also protects in the case of civil partnerships, annulments and legal separation on the proviso that the initial action is recognised in the court.
The criteria regarding habitual residence or domicile must be met and you will need to obtain leave from court before the application is issued and it must be made without notice to the respondent. An application may be made to set aside or prevent a disposition of assets, previously enshrined in an overseas financial order, if the court deems it appropriate.
Fernanda Stefani, a senior associate remarked “Initially many respondents objected to the prospect of a revised financial order and resisted any attempts to do so, leading lengthy appeals and rising costs. In light of this the Supreme Court introduced a filter system that weeds out spurious applications brought by the respondent to set aside foreign financial orders that have little merit and have a negligible chance of success to prevent time and money being wasted.” She further commented, “equally the filter system prevents a spouse threatening to use the provisions of Matrimonial and Family Proceedings Act 1984 to bring a claim, despite its lack of merit, as a threat and a way of obtaining a greater share of the family assets.”
We can assist you to set out all the necessary evidence to fulfil the criteria required to enable you to apply for an interim order. If leave to apply is granted, the court has jurisdiction to make an interim maintenance order if it can be shown that the family are in immediate need of financial assistance. The court will then need to determine the application without further notice unless it considers it appropriate to direct that the application be determined on notice to the respondent.
All circumstances will be considered by the courts when deciding as to whether an order should be made, including the connection the parties to the marriage have with England and Wales and any financial benefit which the applicant or a child of the family has received or is likely to receive, in consequence of the foreign decree, either by virtue of an agreement or by operation of law in any other country, and the length of time which has elapsed since the foreign decree was obtained.
The leading case law in this matter is Agbaje –v- Agbaje  UKSC 13 where the Supreme Court decided that primary consideration must be given to the welfare of any children of the marriage. It was also held that it will never be appropriate to make an order that gives the claimant more than they would have been awarded had all proceedings taken place within this jurisdiction, and where possible, the order should provide for the reasonable needs of each spouse.
The English High Court can therefore step in can make a financial settlement order in the same way as if the divorce happened in England, in certain circumstances.
Originally Published by Giambrone Law, February 2021
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.