Part III of the Matrimonial and Family Proceedings Act 1984 (the Act) governs the bringing of claims for financial provision after a foreign divorce – these are often referred to as “Part III” claims.
You may wish to consider a Part III claim as not all countries allow for divorcing couples to have financial awards that met their reasonable financial provisions. You may have received no financial provision following an overseas divorce or perhaps not enough to meet your needs. By applying to the courts in England and Wales, you may seek redress where the foreign courts have fallen short.
However, we first have to consider if you have jurisdiction to bring a claim. We will need to show that:
- either you or your (former) spouse were domiciled in England and Wales on the date of the application for leave or were so domiciled on the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country;
- either of you or your (former) spouse were habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or were so resident throughout the period of one year ending with the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or
- either or both of the parties to the marriage had, at the date of the application for leave, a beneficial interest in possession in a dwelling-house situated in England or Wales, which was at some time during the marriage a matrimonial home of the parties to the marriage.
If you have remarried, you are barred from making a Part III application.
Before making an order for financial relief in the courts in England and Wales, we must consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court here; if the court is not satisfied that it would be appropriate, the court will dismiss the application.
The court shall in particular have regard to the connection the parties have to England and Wales and will consider the following matters:
a. the connection which the parties to the marriage have with England and Wales;
b. the connection which the parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated;
c. the connection which the parties have with any other country outside England and Wales;
d. any financial benefit which the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a country outside England and Wales;
e. the financial provision awarded by the country where the divorce took place and the extent to which the order has been complied with or is likely to be complied with
f. any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and if the applicant has omitted to exercise that right the reason for that omission;
g. the availability in England and Wales of any property in respect of which an order under the Act in favour of the applicant could be made;
h. the extent to which any order made under the Act is likely to be enforceable;
i. the length of time which has elapsed since the date of the divorce, annulment or legal separation.
The family team at Branch Austin McCormick can explore these criteria with you and advise whether you meet them.
If permission is granted, a timetable is usually set down to deal with the financial proceedings. The court can order a transfer or sale of property; lump sums; maintenance for you and for children; and pension sharing orders. The court can also make injunctions to restrain the disposal of assets and / or set aside a transfer of assets made with the intention of defeating the other spouse’s claim for financial relief.
Mira Gohil-Patel is a divorce lawyer at Branch Austin McCormick. She has over twenty years of experience in advising clients in relation to divorce and matrimonial financial disputes. Contact Mira or any of our family law team for expert advice on applying to the court in England and Wales for financial provision after an overseas divorce or defending such a claim, we offer free initial consultations to discuss your situation and explain how we can help you.