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Getting a financial order after divorce in another country30th April 2019 Family Law
In England and Wales, the court has a wide discretion to deliver a “fair„ financial outcome on divorce, based on a list of statutory factors as interpreted by previous case law. Equal division of assets is not the default option but the court will need good reasons for “departing from equality„ such as need, the existence of a properly completed pre-nuptial agreement etc.
Different countries deal with the financial aspects of divorce in very different ways. This is down to a wide variety of reasons including differences in legal systems, divergent attitudes to gender equality and same sex relationships, cultural differences, alternative ways of categorising and valuing assets, the list goes on. For some people, an overseas financial settlement (or the inability to apply for one at all) can cause unsatisfactory results, even hardship.
However, the financial settlement (or lack of one) resulting from a divorce overseas may not be the end of the story. Under Part III of the Matrimonial and Family Proceedings Act 1984, a person who has been divorced abroad but has sufficiently substantial connections with this country can apply to the courts here for a financial order.
The application process has two stages. First you have to apply for permission to proceed, at which point the court will decide whether you have a “substantial ground„ for making the application. It is difficult to say exactly what amounts to a “substantial ground„. Only this month, a High Court judge in the case of Vasilyeva v Shemyakin said that
“In between the plainly unmeritorious and the plainly meritorious will be many cases where the assessment of substantial or solid ground is as much an art as a science„
The court will look at a variety of factors, including the nature of the parties’ connection with this country, what financial provision (if any) was made abroad, the availability of property in England and Wales and how likely it is that an order made here would be enforceable.
Once you have applied for permission, you make a substantive application for a financial order, using a similar procedure to those divorced in England and Wales. The final outcome will depend very much on what has already been provided and the nature of the available assets and income. In the right case, the court can make an order very similar to what would have been put in place after a divorce in England and Wales.
Public awareness of applications under this legislation appears to be limited and there could well be deserving, potentially eligible applicants out there who simply do not know that this is an option. Due to the international element, proceedings can be complex but this should not deter anyone from finding out whether this legislation could help them.
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