Financial Claims Following a Foreign Divorce
What is the Act under which you can claim?You can claim under ‘Part III’ of the Matrimonial and Family Proceedings Act 1984. These are often known as ‘Part III claims.
Why does the legislation provide for this?Not every country allows for reasonable financial provision in the event of a divorce. The act aims to address these situations and achieve fairness for international families.
What are the criteria that you must meet in order to apply?Firstly, your divorce must be legally valid. If it is recognised in the law of the country you were divorced, then the UK court will accept that it is legal under our law. Secondly, you must not have remarried. Thirdly, you must have a sufficient connection with England.
What is a sufficient connection with England?Essentially, you have to establish one of the following:
- Either you or your former spouse have to be domiciled in England and Wales (i.e. you consider it your true home) at the time of the application or at the time of the foreign divorce;
- Either you or your former spouse have to be habitually resident in England and Wales (i.e. your life is mainly based here) for one year before the date of the application or before the date on which the foreign divorce took effect; or
- Either you or your former spouse has at the date of the application a beneficial interest in a property here which was at some time during the marriage a matrimonial home.
Requesting permission to applyOnce you have been found eligible and the court is happy to process the application, you will be able to issue your request for financial relief. The application would proceed similarly to if you were applying for a financial remedy order following a divorce in England.
The courts in England and Wales have broad discretion to grant financial provisions. Legislation sets out certain factors that the court must take into consideration. Still, you will have to show that you have attempted to use local remedies and sought reasonable financial provisions in the country where the divorce occurred.
The court can make orders similar to those of a financial remedy order as if the divorce had occurred here; this means they can order the transfer or sale of a property, payments of lump sums of money, child and spousal maintenance payments and pension sharing orders.
Since Brexit, the EU Maintenance Regulation no longer has an effect; this means that overseas parties cannot obtain pension sharing orders in England after a foreign divorce unless one of the ex-partners is domiciled in the UK. In addition, the UK court now has greater authority to consider all aspects of financial provision since the EU country where a maintenance application was first made no longer takes precedence.
Part III orders can also be used to obtain pension sharing orders as foreign divorce pension sharing orders cannot be applied to pensions in England. Part III claims can also be helpful when the law of the country where the divorce took place does not have provisions regarding offshore assets.
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