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Editorial

Divorce in the English Courts for Foreign Nationals

Each year there are 24,000 divorces heard in the courts in England and Wales which involve a foreign national.  Divorce in England and Wales is often considered more favourable to women as it favours the weaker party in the divorce which is frequently the wife due to having either no income or a smaller income compared to her husband.   However, not in every case.

Should there be a Pre-nuptial Agreement, consideration is given to the terms of the Agreement on a case by case basis.  Also, maintenance is largely discretionary rather than a fixed formula, which is seen in other jurisdictions.

Another advantage to the foreign spouse is that should your divorce have taken place abroad and the financial settlement was not entirely fair, perhaps due to cultural bias towards men or lack of funds to enable proper representation, Part III of the Matrimonial & Family Proceeding Act 1984 (MFPA 1984) provides an opportunity, as long as all the necessary provisions are met by the applicant, to vary the financial arrangements to make a fairer settlement.

The criteria to be fulfilled before such an application can be made are:

  1. at the time of the foreign decree, at least one of the parties to the marriage must have been domiciled in England and Wales, or,
  2. at least one of the parties was habitually resident in England and Wales for one year preceding the application or decree, or,
  3. at least one of the parties is entitled to a beneficial interest in a property in England and Wales that was once the matrimonial home (in which case the court is confined to dealing with the property in question).

The application is made in two stages, known as the filter mechanism, in the first place an application is made for leave under s.13 and R3.17 FPR.  The court must consider two things once permission has been granted:

  1. First, whether it is appropriate for a UK court to make the order the applicant is seeking.
  2. If the answer is “yes” the court goes on to consider all of the circumstances of the case, including all the relevant factors that the court would normally consider at the start of financial relief proceedings.  Including the financial resources of the parties, the standard of living they enjoyed during the marriage and their competing financial needs. The English court has the power to ‘revisit’ the case and is given recourse to the full range of remedies the court usually has available to it.

The generosity of the English courts makes the UK a highly popular destination for divorce.  However, it is extremely important to be represented by a legal team that has knowledge of and the language of both jurisdictions to achieve the best possible outcome.

For more information about all aspects of divorce, family law and financial settlements related to divorce please contact clientservices@giambronelaw.com or call 020 7183 9482

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