Financial Orders in Overseas Divorce
17 January 2017
As the number of Brits getting married or registering relationships outside of the UK increases, the number of people separating and getting divorced abroad increases too.
We are often asked by people facing this situation if they can pursue legal action in the English Courts, or if they are bound by the rules of the country where the divorce took place? The answer is that it depends on the situation so here we answer some common questions:
What if We Have Property or Assets Overseas?
Usually, any financial or property claims are dealt with by the Court in the country that grants the divorce.
What if I Feel the Foreign Court Decision is Unfair?
People who have a connection with England and Wales can still pursue the Financial Orders in the English Family Courts, but only if they have suffered hardship because of a decision made by the foreign Divorce Court. Financial Orders can relate to maintenance, lump sum payments and property claims.
An example may be where the foreign Court has not provided reasonable financial support to the applicant. An application for financial relief can be made where:
- A marriage or civil partnership has been dissolved or parties are legally separated under a Court Order made in an overseas country; and
- The divorce or legal separation is recognised as valid in England & Wales.
How Do I Apply?
An applicant must have the right to reside in England & Wales, or be domiciled in England & Wales. A request must be made for permission to issue an application. The Court will consider a range of factors as to whether an Order should be made, including:
- The connection those in the relationship have with England & Wales – do they live or work here, or do the children attend school here?
- Any financial benefit which the applicant or a child of the family has received, or is likely to receive in the foreign country – is this sufficient to meet their needs? and
- The length of time which has elapsed since the foreign decree was obtained, as delay in bringing a claim may be a factor.
How Does the Court Decide?
The UK Supreme Court has said that primary consideration must be given to the welfare of any children of the marriage. However, it has also said that it will never be appropriate to make an Order that gives the applicant more than they would have been awarded had all proceedings taken place within England or Wales.
Once the Family Court has granted permission the financial timetable applied will be as if the divorce was originally heard within England or Wales.
This can be a very difficult application to bring, especially if the other person objects to the claim. Getting expert legal advice is critical.