It is of course not at all unusual for families to move between countries, which can obviously have the effect that on marriage breakdown the courts of more than one country may be able to deal with the divorce.
Usually this will mean that the courts of one of those countries will deal with both the divorce itself and the financial settlement.
However sometimes one party will be living in this country but will find themselves divorced in another. Can they apply to the courts here for a financial settlement?
The answer is that they can, provided that certain conditions are met.
But first a little history, to explain why the law is as it is.
Until 1985 the courts in this country had no power to grant financial relief following a foreign divorce.
This was recognised as a problem, which could cause considerable hardship. A hypothetical example of the problem was given in 1982 by the Law Commission, which suggested the following scenario:
“Suppose an English woman marries a wealthy Ruritanian, and they establish the matrimonial home here in a house owned by the husband. In due course, the husband divorces her in Ruritania … No financial order is made in Ruritania. The Ruritanian divorce is recognized in this country as effective to terminate the parties’ marriage. The wife then has no right to apply to the court here for financial provision … Such a woman may thus face destitution…”
To address the problem of someone getting no, or no adequate, financial provision from the foreign court, the Commission recommended that the law be amended to allow the courts here to grant financial relief following a foreign divorce. The new law was enacted in 1984, and came into force in the following year.
So how does the law operate?
Firstly, the divorce must be recognised as a valid divorce in this country, and the party applying for relief must not have remarried.
Secondly, the court here must have jurisdiction to deal with the application. Essentially, this means that one of the parties must have a strong connection with this country, for example because they are habitually resident here, or that the matrimonial home was in this country.
Thirdly, the application may only be made after the court has given its permission. The court will only give permission if it considers that there is substantial ground for the making of the application. Note that permission can still be granted if the foreign court has made a financial order.
Once the application has been made the court must consider whether it would be appropriate for an order to be made, having regard to all the circumstances of the case, including in particular the connection which the parties have to this country and what rights the applicant has to apply for financial relief from the other party to the marriage under the law of any other country.
Finally, if the court has decided that it would be appropriate to make an order then it will decide what the order should be, using similar criteria to that used in a financial remedies application after a divorce in this country.
Obviously, applications for financial relief after a foreign divorce can be quite complicated. It is therefore highly recommended that, before an application is made, expert legal advice be sought. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.
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