Family Law: Autumn 2011 - How wide does English divorce law cast its net?

7 October 2011

Generally, English law recognises at face value a marriage celebrated overseas. The same is not always true of a foreign divorce – or more accurately, the financial orders made following a foreign divorce.

The short case study below is an example of just one situation where the English Court imposed a financial remedy in respect of a couple divorced abroad, even though the foreign court had already made a financial order:-

The husband and wife married in England and moved to Japan with the husband’s employment at the beginning of the marriage. They had two children, who were both British citizens. The husband divorced the wife in Japan. She received very limited financial provision from the Japanese Court: a small amount of capital and maintenance for the children, but no maintenance in her own right.

Following the divorce, the wife moved to England with the two children. Upon arriving here, the wife brought an application seeking maintenance for herself, a school fees order and capital to enable her to purchase a home. The English Court awarded her the relief she sought.

Under Part III of our Matrimonial and Family Proceedings Act 1984 (“MFPA”), it is possible to seek financial provision here following the pronouncement of a divorce overseas. This is provided certain conditions are fulfilled.

The permission of the English Court must be obtained before an application under the MFPA can proceed. A Judge deciding the application is obliged to consider whether England and Wales is an appropriate venue for the application. Any applicant under the MFPA will need to demonstrate a real and substantial connection to England and Wales. If the preliminary conditions are satisfied, the English Court may go on to make a range of financial orders, including pension sharing orders. This is especially useful if the foreign Court’s powers to deal with pension assets are limited or non-existent. The welfare of any minor children will be the Court’s first consideration.

Applications under the MFPA are becoming increasingly popular, in keeping with the growing number of marriages between foreign nationals with homes and assets in more than one country. Clients divorced abroad should bear in mind the potential entitlement to make an application under this legislation, especially if the foreign court has made inadequate (or no) orders for financial provision.

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