Can I divorce in England following an unfair divorce abroad? - Boodle Hatfield

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24 Oct 2023

Can I divorce in England following an unfair divorce abroad?

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Generally, if you have been divorced overseas the English court will recognise that foreign divorce. However, if you have obtained a financial award overseas that does not meet your needs (or indeed if no financial provision has been made overseas) then you may be able to apply to the English court for a financial order. This is referred to as a "Part III (Matrimonial and Family Proceedings Act 1984) claim".

In order to successfully apply under Part III, you will first need to ensure you meet the following criteria in respect of your marriage:

  1. You must have a valid marriage (recognised by English law);  
  2. That marriage must have been subsequently dissolved so that you have divorced in an overseas country (and that divorce is also considered to be valid under English law); and 
  3. You must not have remarried.

Assuming the above applies to you/your marriage you will then need to satisfy the court that you have jurisdiction. This can be established based on either 

  • (i) your domicile
  • (ii) habitual residence; or 
  • (iii) by virtue of having an interest in a property in England & Wales that was at some stage used as a "matrimonial home". Habitual residence and domicile are legal concepts and the facts of a specific scenario will govern the extent to which these might be established on a case by case basis. It is important to take specialist legal advice as to which country you or your spouse is domiciled/habitually resident before issuing divorce proceedings.

Assuming you can establish jurisdiction, you will then have to apply for permission to make an application to the English family court. This additional stage essentially provides a filter for the court to weed out any unmeritorious claims. 

In considering a substantive application for financial provision following an overseas divorce, the court will take into account all of the circumstances of the case, with the first consideration being given to any children of the family. The court has wide-ranging powers, such as the ability to order lifetime spousal maintenance, transfer property and assets from one party to the other (irrespective of which party owns the asset in question) and share pensions. 

There is no rule that any financial award under Part III should be the minimum required to overcome injustice; the court has broad jurisdiction, though it is accepted that it would be inappropriate for a court to award more under Part III than it would order on a divorce in England. Where possible the court will make provision to meet the reasonable needs of the applicant spouse; however if the connections to England are very strong (e.g. the family lived in England for the majority of their marriage) there may be no reason why the application should not be treated as if it were made in English divorce proceedings. If the connections are more tenuous, the English court may decline to intervene at all, particularly if a financial order has already been made overseas. 

Ultimately, the English court is not looking to provide a second bite of the cherry to any disgruntled spouse who has been unhappy with a financial award made overseas. However, the Part III procedure can be an extremely valuable means to achieve fairness for those who have received inadequate financial provision following an overseas divorce in circumstances in which the parties have substantial connections with England.

This is a complex and technical area of the law and it is important to seek specialist advice from the outset in order to plan for, or defend against, any potential Part III claim. Steps taken at an early stage can have significant implications on the ultimate success of such claims. 

Interested in knowing more? More information on divorce can be found in our FAQs here and a copy of our Family Law Glossary - that tackles some of the common terms that crop up during the course of proceedings - can be found here.

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