It is a cliché to say that London is the divorce capital of the world, nevertheless it remains the case that wealthy, international families often engage in forum shopping and compete in jurisdiction races to file for divorce in England and Wales (referred to as ‘England’ for the purpose of this article).
The English courts are perceived as being more generous to the financially weaker party than other countries, particularly in relation to the amount and length of spousal maintenance. However, it is not necessarily the end of the road for aggrieved individuals who have divorced overseas and feel that that the provision was inadequate compared to what they would have received if they had divorced in England.
In these circumstances individuals may still be able to bring a claim for financial provision in the English courts under Part III of the Matrimonial and Family Proceedings Act 1984 (‘Part III’) in the hope of obtaining a second, more generous, bite of the cherry.
A successful claim under Part III enables the English courts to make an order for financial provision where inadequate financial provision has been made overseas. Part III proceedings can be particularly useful where the country of divorce does not allow orders to be made in respect of offshore assets. For example, foreign divorce pension sharing orders have no validity against English pensions so a Part III claim can also be used to obtain pension sharing order for an English pension.
There are some prerequisites that first need to be met, applicants must evidence the following: the validity of their overseas divorce, that they haven’t remarried and that they have sufficient connections to England. In determining whether there is a sufficient connection to England, the court will consider each party’s domicile and habitual residence at the time of the Part III application and at the time of the overseas divorce. The court will also consider if one of the parties has a beneficial interest in a property in England which was the matrimonial home at some point during the marriage (although if this connection is relied on then the claim is limited to the value of the property in question).
There are two stages to making a claim under Part III. First, applicants must apply for permission (known as “leave”) to make an application by demonstrating that they have a “good arguable case”. In determining whether to grant permission, the court will consider: each party’s connection with England and the country of divorce (and any other relevant country), the financial provision awarded by the country of divorce and if that award has been complied with or is likely to be complied with, the length of time since the date of divorce, any financial benefit the claimant or a child of the family has received or is likely to receive in another country, any property in England and whether an order made under Part III is likely to be enforceable.
Once this first hurdle has been met, applicants can then proceed to file their application for financial relief.
The court has broad discretion to grant financial provision and each case will turn on its own facts. Where possible, the financial outcome should provide for the reasonable needs of both parties and any children. Where the parties’ connection with England is particularly strong, the court may grant an award equivalent to one that would have been made had the divorce been in England. Where the parties’ connection to England is weaker and the court consider there to already be adequate financial provision, the court may simply “top-up” an overseas award. The court can make similar orders to those on an English divorce; transfer or sale of property, lump sums, pension sharing orders and maintenance for the applicant and any children.
The highly publicised case of Potanina v Potanin was heard in the Supreme Court earlier this month, concerning the overseas divorce of a Russian billionaire Vladimir Potanin and his ex-wife Natalia Potanina. Ms Potanina brought a claim under Part III and was unsuccessful in the first instance but won at the Court of Appeal. Mr Potanin appealed the Court of Appeal’s decision that Mrs Potanina had satisfied the criteria for leave to apply under Part III. The Supreme Court’s judgment is due in 2024 and is likely to provide family practitioners with further guidance on the procedure and scope of awards under Part IIII.
Part III claims can provide a fairer outcome following an overseas divorce however it is important to first obtain legal advice to ensure that that there are sufficient grounds for making an application and to assess the prospects of success.
