Financial provision after an overseas divorce is regulated under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984). For the dissolution of a civil partnership, the financial provisions may be found under Sch 7 to the Civil Partnership Act 2004 (CPA 2004). If the spouses or civil partners have a connection with England and Wales, they may be able to access financial remedies in this country if the Court considers it appropriate to make such an order. Moreover, the overseas divorce or dissolution must be recognised as valid in England and Wales.
For English courts to be able to hear the application, they must have jurisdiction. Consequently, the parties' domicile and habitual residence are important. For the English courts to have jurisdiction,
- either party must have had their domicile in England and Wales on the date of the application or the date when the foreign divorce or dissolution took effect;
- either party must have been habitually resident in England and Wales for a year before the permission application or before the foreign divorce or dissolution took effect;
- either party had an interest in a former family home in England or Wales. However, this last option limits the orders that a court can make.
The financial provision itself is a two-stage process. Either party may apply where a marriage or civil partnership has been dissolved or annulled in proceedings abroad unless that party has since remarried or formed a new civil partnership. The first stage consists of an application to the Court to request permission to proceed, also called a leave. At this stage, the Court will consider whether it has jurisdiction and whether the applicant has ‘substantial ground' for making the application. The Court will also consider whether making an order for financial relief in England and Wales would be appropriate. The other party will not be notified unless the Court considers it necessary. After the permission is granted, the other party has seven days to apply to set aside the permission.
The second stage is the main application where the applicant submits a second application form to the Court. The Court will have regard to all the circumstances of the case and will consider a range of factors as to whether an order should be made. Those factors are listed in Section 25 of the Matrimonial Causes Act 1973 or Part 5 Schedule 5 of the CPA 2004 (for civil partnership). Some of those factors are:
- The income, earning capacity, property and other financial resources of the parties – both what they have, or are likely to have in the foreseeable future.
- The financial needs, obligations and responsibilities of the parties – again what they have, or are likely to have in the foreseeable future.
- The standard of living enjoyed by the family before the breakdown of the marriage or civil partnership.
- The ages of the parties and the duration of their relationship.
- Any physical or mental disability.
- The contributions that each party have made, or are likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
- The respective conduct of the two parties.
- Any potential benefits that either party might lose.
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.
