Introduction
Where two people have separated and obtained a divorce in an overseas country, they cannot apply immediately for a financial remedy in England and Wales. Instead, they must first seek the leave of the Court under Part III of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”). Such applications entail a two-part procedure, as set out below.
Part 1: Establishing jurisdiction
When considering such applications for leave, the Court will first look at whether it has jurisdiction under one of the three gateways in section 15(1) of the 1984 Act. Under the latter provision, jurisdiction is established if:
- either of the parties is domiciled in England and Wales on the date of the application for leave, or was so domiciled on the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or
- either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or was so resident throughout the period of one year ending with the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or
- either or both of the parties to the marriage had, at the date of the application for leave, a beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.
Once jurisdiction is established, the court will move on to consider whether or not leave ought to be granted
Part 2: Obtaining leave
Section 13 of the 1984 Act provides that “the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order”. The Supreme Court in Agbaje v Agbaje [2010] UKSC 13, summarised the test applicable in such cases as follows:
[i]n the present context, the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high but is higher than ‘serious issue to be tried’ or ‘good arguable case’ found in other contexts. It is perhaps best expressed by saying that in this context ‘substantial’ means ‘solid’
Section 13 of the 1984 Act must, furthermore, be read in conjunction with section 16. The latter provision sets out the relevant matters to be considered in such applications. The matters include for example, the connection which the parties to the marriage have with England and Wales, and the connection which the parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated.
The overall approach was recently considered by the High Court in Lockwood v Greenbaum [2022] EWHC 845. In short, the Court held that all the circumstances of the case must be considered whilst having particular regard to the matters set out in section 16; thereafter, the court must consider “whether there are solid grounds for the application“.
Summary
An overseas divorcee wanting to apply for a financial remedy in England and Wales must first establish jurisdiction, and secondly obtain leave from the court; leave will be granted if, having regard to all the circumstances of the case, and the parties’ ties to the UK, there are solid grounds for the making of such an order.
Demstone Chambers
For help with Family Court Financial Remedy proceedings, including overseas divorce issues, contact our family law barristers. We are based in Milton Keynes, but we can help clients anywhere in England and Wales.