Finances after a foreign divorce
“I divorced outside of the UK but the finances were not dealt with – what can I do?”
“The financial order made by the foreign Court in my divorce is insufficient or is inferior to the award that would have been given if the divorce took place within the UK – what can I do?”
These are questions commonly asked to us when clients have divorced outside of the UK but have then returned to the UK to live permanently.
It is possible to apply to the UK Court for a financial remedy order after a divorce has taken place outside of the UK in some circumstances. This application is a two-step process. The first step is applying to the UK Court for permission to apply for a financial remedy order and if this permission is granted, the second step is to make the substantive application.
Who can apply?
Either party to the foreign divorce can apply to the UK court where:-
• The marriage has been dissolved or annulled, or the parties to the marriage have been legally separated by means of judicial or other proceedings in an overseas country; and
• The divorce, annulment or legal separation recognised as valid in England and Wales.
(Section 12(1), MFPA 1984.)
Jurisdiction of the UK Court
In order to make an application for permission, you must meet one of the following requirements:-
• Domicile. Either party is (on the date of the permission application) or was at the time of the foreign divorce domiciled in England and Wales.
• Habitual residence. Either party was habitually resident in England and Wales for the past year, before the permission application is made, or the date when the foreign divorce, annulment or legal separation took effect.
• Matrimonial home in England and Wales. Either party has or had at the time a beneficial interest in a dwelling-house in England or Wales that was at some time during the marriage a matrimonial home of the parties.
(Section 15(1), MFPA 1984.)
What if I have remarried?
If you have remarried, you are not able to apply to the UK court for a financial remedy order. If you are considering remarrying imminently, you should take clear legal advice from us and ensure that your application to the UK court is made before you remarry.
What will the Court consider at the permission stage?
The court may not grant permission to you if it believes there is not substantial (solid) ground for making the application. Rather unhelpfully, the law does not define what is meant by ‘substantial’ but this is something we can discuss with you.
The Court will also consider your connections with the UK and any other relevant country along with the financial issues at hand in assessing whether the application should be allowed.
The substantive application process
Once the substantive application for a financial remedy order has been made, both parties will have to provide full and frank financial disclosure to each other before future negotiations can take place and orders can be made with regard to the overall settlement.
If a financial order has previously been made outside of the UK, the UK Court will need to consider whether any ‘top-up’ of that award is fair and appropriate in the circumstances.
If this situation is relevant to you, please contact us to arrange a free, no obligation callback to discuss the background and your prospects of success in applying to the UK Court for financial relief.
