Where a spouse obtains a divorce abroad and a financial order settling their finances in an overseas court, it may seem reasonable to assume that this will be the end of the matter. However, Part III of the Matrimonial & Family Proceedings Act 1984 (MFPA 1984) provides the English court with a discretion to step in (provided certain jurisdictional requirements are met), and make the same orders as if the divorce had been granted in England.
Where a begrudging spouse feels that a foreign court order has provided them with inadequate financial provision on divorce, they can apply for permission to bring a claim under Part III of the MFPA 1984, provided one of the following criteria are met: at the time of the foreign decree, at least one of the parties to the marriage was domiciled in England and Wales, or, at least one of the parties was habitually resident in England and Wales for one year preceding the application or decree, or, at least one of the parties is entitled to a beneficial interest in a property in England and Wales that was once the matrimonial home (in which case the court is confined to dealing with the property in question).
Once permission has been granted, the court will consider two things, firstly whether it is appropriate for a UK court to make the order the applicant is seeking. If the answer is "yes" the court goes on to consider all of the circumstances of the case, which includes all of the factors that the court would normally consider at the start of financial relief proceedings. Such factors include the financial resources of the parties, the standard of living they enjoyed during the marriage and their competing financial needs. To the inevitable horror of the financially stronger party, the English court essentially has the power to 'revisit' the case and is given recourse to the full range of remedies it usually has available to it.
Recent case law demonstrates that the English courts have become increasingly willing to do what some might regard as stepping on the toes of the orders made by judges in other sovereign states. For example, in Z v Z and Others [2016] EWHC 911, Roberts J found it appropriate for the English courts to make a financial remedy order under Part III of the MFPA 1984 (often colloquially termed as a 'top up' order) following a Russian divorce, despite the wife's delay of five years in bringing proceedings and the existence of a Russian financial order compromising claims worldwide.
The purpose and political thrust of Part III is to alleviate adverse consequences on the financially weaker spouse of no, or inadequate, financial provision being made by a foreign court. As described above, gaining access to the determination of the English courts through the 'back door' of Part III of the MFPA 1984 can be a valuable resource for one party to a divorce, given that the English system of ancillary relief has long been regarded as one of the most generous in the world. However, the English court's ability to interfere with financial remedy awards made abroad is not unfettered, as the parties must have, or have had, substantial connections with England. However, in cases where the legal requirements set out in Part III of the MFPA 1984 are satisfied, the court may allow a spouse a second bite of the ancillary relief cherry – and the cherries in England are as sweet and plump as they come.
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.
