DIVORCE AND FINANCIAL RELIEF AFTER A FOREIGN DECREE Gina Allwood 7 BEDFORD ROW

1. DIVORCE AND FINANCIAL RELIEF AFTER A FOREIGN DECREE Gina Allwood 7 BEDFORD ROW

2. FINANCIAL ORDERS FOLLOWING OVERSEAS DIVORCE: INTRODUCTION Some married couples have ties to one or more countries. Different countries have different divorce, financial relief and children laws. As a result, what may apply in one country can be quite different in another. What happens if a divorce is granted overseas? Does this mean that the English Courts are prevented from dealing with matters once an order has been made abroad?

3. AFTER FOREIGN DIVORCE • In certain situations, Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA) allows the English courts to make financial orders following a foreign divorce. • Two stage application process. • The first step is to establish whether the English Courts have the jurisdiction (the ability) to hear the application.

4. STEP 1;-4 CONDITIONS;- • Foreign decree must be entitled to recognition in England Family Law Act 1986 and Brussels II (for EU Countries, judgment is recognised without any special procedure - Art 21) • Leave of Court required (Matrimonial and Family Proceedings Act 1984: s.13.) This will involve showing substantial grounds for Court to exercise its powers under s.12 MFPA’84. • Parties must have a genuine connection - either or both parties habitually resident in England for a minimum of 1 year before the application was made or decree of divorce; or either/both had an interest in a dwelling house used as a FMH. • Forum Conveniens - should it be heard in England? Burden of proof on A.

5. STEP 2 – FORUM CONVENIENS Apply for Leave or the Courts permission The Court must consider the following;- The connection of the parties to England / other Countries Financial benefits likely to be received under foreign law Any right to apply for financial relief under foreign law Availability of property in England in respect of which an order could be made. Extent to which the order is enforceable. Length of time elapsed since foreign decree.

6. IF LEAVE IS GRANTED…… • The court will consider the merits of the case, and whether it needs to make any orders adjusting the couples finances, including interim relief. • This legislation has recently been considered at some length by the Supreme Court. • The Court of Appeal refused to make any provision for a wife, following a divorce in Nigeria. • The Supreme Court overturned this decision, because of the families strong connections to England.

7. INTERIM RELIEF • MFPA s.14- Interim Maintenance • MFPA s.24 -Preventing transaction intended to defeat possible application for AR (s.37 MCA 1973).

8. MAINTENANCE Maintenance Orders:- • English Courts also have jurisdiction to make an order for financial Provision in cases where there has been a failure to provide reasonable maintenance. • A foreign decree of divorce recognised in England does not necessarily put an end to maintenance ordered by an English Court. • A Court can make an order for Periodical Payments in a case where one is domiciled and resident abroad and has not assets in England.

9. WORLDWIDE FREEZING ORDERS Civil Jurisdiction and Judgments Act 1982 + Civil Jurisdiction and Judgments Act 1982 (Interim Relief) • Enables Courts to grant injunctions over property wherever situated in relation to disputes over maintenance, lump sums and property rights.

10. PITFALLS :-( • The foreign Court will refuse to enforce the injunction • The Order is ineffectual • No undertakings as to damages • Limited to disposition party about to make + GUILTY INTENTION must be shown!

11. HOWEVER.. • A Court will decline to exercise its powers where any order • It might make would be wholly ineffective (case law prior to Conventions) • “Once competent, always competent” (Australia)

12. PRACTICE • Which Court? High Court or County Court • MPFA’84 • Service out of the jurisdiction • Consider Witnesses - A witness outside the Country cannot be compelled to attend a Substantive hearing. • Consider ways of obtaining other evidence ie: Consul of Requesting Country can be appointed as Special Examiner to take evidence and invite witnesses to produce documents.

13. RECENT CASE LAW • FRANCESCO TRAVERSA v CARLA FREDDI [2011] EWCA Civ 81 • AGBAJE v AGBAJE [2010] UKSC 13

14. “SUBSTANTIAL GROUNDS” The threshold test for whether there was "substantial ground" for applying for financial relief as required under the MFPA 1984 s.13(1) was as set out by the Supreme Court:- Agbaje v Agbaje [2010] UKSC 13, [2010] 1 A.C. 628, No gloss on that guidance was needed. An application under s.13(1) should be made without notice as provided by the Family Proceedings Rules 1991 3.17(1).

15. PURPOSE OF THE ACT VSDVSDIn making its order the court was clear the purpose of the Act was not to allow someone with “some” English connections to take advantage of what may well be the more generous approach in England to financial provision. The Act should only be applied towards the alleviation of inadequate financial provision being made by a foreign court, where the parties had substantial connections with England. The fact that there might be a disparity between an award of a foreign court and what would be awarded in an English Court is not enough to allow an application using Part III.

16. SUMMARY • ANCILLARY RELIEF • DIVORCE : FOREIGN PROCEEDINGS • APPLICATIONS WITHOUT NOTICE • PERMISSION • PROPERTY ADJUSTMENT ORDERS : SETTING ASIDE : • THRESHOLD TEST UNDER S.13(1) MFPA 1984 :

17. REFORMS Matrimonial Causes Act 1925 S.25(A) v Matrimonial and Family Proceedings Act 1984 s.17 FINANCIAL RELIEF … OR….CLEAN BREAK??

18. A Slow Death… …Stranded Spouses

19. Conclusion Gina Allwood 7 BEDFORD ROW