Spouses who are seeking a divorce outside of England and Wales need to be aware of the potential pitfalls associated with Part III of the Matrimonial and Family Proceedings Act 1984 or “Part III”.
Even if you live abroad, if you do retain connections to England or Wales you should still take specialist family law advice in this jurisdiction to assess your position.
You should instruct a family lawyer who is experienced in dealing with the complexities of international divorce, including jurisdictional issues and financial claims.
Part III applications are a potential route for individuals who have been divorced overseas to seek financial provision in England and Wales.
What is Part III of the Matrimonial and Family Proceedings Act 1984?
The purpose of Part III is to help a party who has received no or inadequate financial provision in a foreign court where there are substantial connections to the UK.
Part III also applies to those who have obtained a legal separation abroad, allowing them to seek financial relief in England and Wales.
An applicant who has an overseas decree for divorce, annulment or legal separation can make an application if they can prove one of the jurisdictional requirements.
The jurisdictional requirements for a Part III claim are set out in section 15(1) of the MFPA 1984.
The two stages of a Part III application
- The Permission Stage
The court’s permission is required to make an application under Part III. In order to grant permission, the court will need to consider that there is a “substantial ground” for making an application. “Substantial ground” is not defined within the statute and so we have to look to the case law to interpret this.
In the ongoing case of Potanina v Potanin, the Supreme Court clarified the threshold for applying for permission to bring proceedings. In this case the parties married in Russia and lived there throughout the marriage. During the marriage, the husband accumulated wealth estimated to amount to in excess of $20 billion. Most of the assets were held in various trusts and corporate vehicles, through which the husband was the beneficial owner. The parties divorced in Russia in 2014. The wife received only a tiny fraction of the overall wealth.
In 2014 the wife obtained a UK investor visa and bought a property in London, shortly thereafter she made London her permanent home. In October 2018, the wife made an application to bring a claim under Part III based on her habitual residence in England. The case eventually made its way to the Supreme Court (and has subsequently been heard again in the Court of Appeal). The Supreme Court confirmed the guidance given in the case of Agbaje v Agbaje [2010] UKSC13 (“Agbaje”) that the word “substantial” means “solid”. However, the Supreme Court clarified that the threshold is higher than merely satisfying the court that the claim is not totally without merit or abusive, but it does not need to be as high as “good arguable case”. The test is more akin to the “real prospect of success” test for resisting summary judgment.
The Supreme Court also found that the previous practice of applying for permission without notice to the other side was procedurally unfair. Given the Supreme Court’s comments about this, going forward all permission hearings are likely to be heard on notice.
- The Substantive Stage
Once permission has been granted, the court will rigorously evaluate the merits of the case. Before it makes an order, the court must consider whether in all the circumstances of the case it would be appropriate for the order to be made by a court in this country. In Zimina v Zimin [2017] EWCA Civ 1429, the Court of Appeal emphasised the statutory requirement to consider “all the circumstances of the case”. In deciding what is appropriate the court will approach the matter broadly and have regard to the statutory purpose of Part III to alleviate hardship in cases of foreign divorce.
The court has a broad discretion and may make orders analogous to those available on an English divorce, subject to the purpose and constraints of Part III. However, if the jurisdiction for an application is based solely on the basis of the matrimonial home being in England, the court’s powers are more limited.
The Court’s Approach
In the case of Agbaje the Supreme Court emphasised that Part III must not be abused and that it is not the purpose of the statute to allow a party with some English connections to take advantage of what is perceived to be a more generous approach of the English and Welsh courts to financial provision. Nor should it be used to obtain a “second bite of the cherry”.
However, in a case where the English connections are strong, there may be no reason why the application should not be treated as if it were made in ordinary English financial remedy proceedings. In making an award under Part III the court must consider section 16 of the MFPA 1984 which requires it to have regard to (amongst other things): (i) any financial provision already received pursuant to the foreign divorce: (ii) the connection the parties have to England and to any country outside England and Wales; (iii) the availability in England and Wales of any property in respect of which an order in favour of the application could be made; (iv) the extent to which the order made is likely to be enforceable. The court often draws guidance by analogy from section 25 of the Matrimonial Causes Act 1973 if the English connections are strong.
Practical Considerations
If you do have strong connections to England, it may be worth considering whether it is worth pursuing a foreign divorce given the ability of the English courts to make further financial provision pursuant to Part III. In that situation a family could end up incurring the cost of two sets of legal proceedings. This is something to consider carefully at the outset of a divorce even if you are living abroad. Enforcement options for financial orders under Part III include freezing assets and selling properties to satisfy the court’s decision.
An applicant who has an overseas divorce can make a Part III application if they can evidence a sufficient connection to England and Wales. Part III applications allow individuals who have divorced abroad to seek financial relief in England and Wales if they meet specific jurisdictional criteria. The Potanina v Potanin ruling may impact the frequency and success of Part III applications.
Our Expertise
At Edwards Family Law, we have significant experience advising on complex Part III applications. This includes our Partner, Sarah Walker, who worked on the landmark Supreme Court case of Potanina v Potanin, and including when it was later remitted to the Court of Appeal.