It is fairly common for separating couples to initiate overseas divorce proceedings for a variety of reasons, for example one or both parties may be a foreign national or the couple may be habitually resident in another country. Although the divorce may have begun and concluded overseas, this does not bar either of the parties from applying for a financial settlement in the English courts.
An application for permission must precede any application for financial proceedings where there has been an overseas divorce. The court will determine whether permission should be granted based upon the merits of that case i.e. is there ‘substantial ground’ for making the application. Such a threshold is not necessarily high and often, provided there is a solid connection to England and Wales by either party, this will satisfy the court that the application holds merit. This is particularly so if one or both parties own assets in England or Wales.
Applications for financial relief proceedings where there has been an overseas divorce is made under the Part III of the Matrimonial and Family Proceedings Act 1984. While there is no specified time limit for making the application after a divorce, it would be fair to assume that the longer the period of time between the conclusion of the divorce and the financial application, the less likely the application is to succeed. However, the case of Z v Z and Others  EWHC 911 (Fam) demonstrates that even after a delay of 5 years, a financial application is possible. The case involves a Russian couple who divorced in Russia and a Russian financial order was entered into. This case is significant for two reasons; firstly the wife delayed in making her application for 5 years following the Russian divorce and financial settlement, yet despite this considerable delay, the Judge permitted the application. The decision was down to the Judge concluding that the wife had actively engaged in seeking advice during the past 5 years, rather than leaving matters ‘adrift’.
Secondly, the original Russian financial order in 2009 provided the wife with US$10 million and incorporated a provision forbidding either party from making any further applications worldwide, the settlement being in full and final satisfaction for all claims. In 2014, the wife applied to the English courts for a share of the London property and another £8 million.
It was concluded that the English court could consider the application, as the Russian order does not prevent a further claim under Part III of the Matrimonial and Family Proceedings Act 1984. The English court is entitled to look at all the circumstances including any changes in the parties’ fortune, although the court made it clear that the wife will not get a ‘second bite of the cherry’.
This case and the Act does provide a level of uncertainty for couples separating with an international element. It is important that you obtain clear and concise advice from the outset and at Hunter & Uro, our solicitors have the experience and expertise to guide you through the process. Contact us on 01234 889777 for a free and confidential consultation. Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters.