A checklist for bringing a financial claim after a foreign divorce

Am I entitled to financial relief if my divorce was abroad?

If your divorce was overseas, it is sometimes possible to bring a financial claim against your ex-partner in England & Wales. This is known as a "Part III" claim as it is governed by Part III of the Matrimonial and Family Proceedings Act 1984.  

Part III is applicable to marriages and civil partnerships and where we discuss divorce, that also relates to the dissolution of a civil partnership.

When can I bring a claim?

An application for a Part III claim has two elements: you first need to seek the court's permission to apply and, on the basis that permission is granted, you need to make an application for the court to consider the substantial matter.

Before you can start a claim, you first need to satisfy the following:

• Is there a valid divorce?

Provided an overseas marriage is recognised by the law of the country in which the marriage took place then, save for in exceptional circumstances, that marriage will be recognised as valid in England & Wales.

• Can the court deal with the matter?

The courts in England & Wales have jurisdiction to deal with the matter if one of the following is satisfied:

1. Either party is domiciled in England & Wales at the date of the application or was domiciled here at the date of the foreign divorce.
2. Either party was habitually resident in England & Wales for a period of one year before the date of the application or one year before the date of the divorce.
3. Either or both parties had at the date of the application, a beneficial interest in a house in England & Wales that was at some point during the marriage used as the family home.

If the above two criteria are met, then an application for permission to bring a claim can be made.

The court's permission is needed in order to prevent spouses bringing second financial claims that are vexatious or hopeless, rather than a genuine attempt to seek financial relief.

How can I get permission to make a Part III application?

On the basis that there is a valid foreign divorce, and the court has jurisdiction to deal with the matter, permission then needs to be sought without notice to the other party.

The court will allow a Part III application if it considers that there is a "substantial ground" for making the application.

A substantial ground is likened to a "solid" reason and the court will broadly consider the following:

1. Is England & Wales the right place to make the application.
2. If so, following an application, could a substantive order be made.

When considering if England & Wales is the right place to bring such a claim, the court will look at:

• The connection that the parties have to England & Wales.
• The connection that the parties have with the country in which they were divorced.
• The connection the parties may have to any other country.
• Any financial relief already obtained / likely to be received following the foreign divorce.
• The extent to which any foreign financial order has been complied with.
• Any right that the applicant has, to apply for financial relief under the laws of the country in which the parties were divorced.
• The availability of property / assets in England & Wales.
• The extent to which any order made in England & Wales is likely to be enforceable.
• The time that has elapsed since the divorce.

What orders can be made following a successful application?  

The court has the power to make the same orders under a Part III claim as it does following a divorce in this jurisdiction (transfer or sale of property, lump sum orders, pension share, maintenance).

The amounts awarded will depend on the merits of the case, but the court will take into account the welfare of any children, make sure that each parties' reasonable needs are met and will be careful to ensure that the applicant would not receive more than they would if the divorce had taken place in this country.

Potential pitfalls

You cannot make a Part III application if you (the applicant) have subsequently remarried.

Depending on your level of connection with this country, the court might only be able to make an order about property and not for maintenance or pension sharing.

Be careful of a delay between the divorce and the claim, while it will not necessarily defeat a claim, it is relevant.

Part III is intended to protect former spouses who did not receive a fair settlement or any settlement at all in the country in which they were divorced; it is not there to provide disgruntled former spouses with a second bite of the cherry following an unsatisfactory financial outcome. Any vexatious or unsubstantial applications will not make it past the court's gatekeeping process. 

What to consider if bringing a Part III claim?

• Is there a valid divorce?
• Is there jurisdiction (domicile / habitual residence for 12 months / family home in England)?
• Is there a sufficient connection for the court to give permission to bring the claim?
• If there is a sufficient connection, could a substantive order be made (are there assets in England / could a financial order be enforced)?
• Has there been a delay since the divorce and if so, is that delay going to affect the application?

How can we help?

Part III claims are a complex area of the law that have the ability to provide crucial financial relief in circumstances where that otherwise might not be possible. If you are considering whether such an application is relevant to you, it is important that specific legal advice is sought. The Family Team at Foot Anstey has the specialist legal knowledge required and we would be delighted to assist.