Divorce Tourism – have you ever been divorced abroad?
If you have been divorced abroad then you may need to consider applying to the court for “financial relief”, i.e. a Financial Remedy Order, in England and Wales. In certain circumstances the court is able to deal with such an application under Part III of the Matrimonial and Family Proceedings Act 1984 (”Part III”).
There is no automatic right to make such an application, which is a 2 stage process. The first stage is to ask the court’s permission to make the application and the second stage is where the court considers the substantive application.
The court will only grant permission if it considers that there is a “substantial ground” for making the application. Even if a financial award has been made by a foreign court it is still possible to apply under Part III for an award in this country. The court will have jurisdiction if either party was domiciled in England & Wales at the time of the application or the divorce, if either party was habitually resident in England & Wales for a year ending with the date of the application for permission, or the date when the foreign divorce, annulment or legal separation took effect or if either has a beneficial interest in a house in England & Wales that was at some time during the marriage a matrimonial home of the parties.
The court must first consider whether this country is an appropriate forum and will take into account the factors listed under section 16(2)(a)-(i), which include:
- The connection the parties have with England & Wales;
- The connection they have with the country in which the marriage was dissolved (or annulled or in which they were legally separated);
- Their connection with any other country;
- The financial benefit the applicant or a child of the family has already received or is likely to receive;
- The length of time since the separation.
If permission is granted then the court is able to make almost the same financial orders as it could after a divorce in England & Wales.
In the recent case of Potanin v Potanina the parties were married in Russia and it was a long marriage with 3 children, all adult at the time of the application. Mr Potanin became “massively rich” with a fortune his wife put at some $20 billion. Although there were extensive court proceedings in respect of the finances in Russia, Mrs Potanina felt that the court had not split the assets equally due to the husband’s “wealth, power and influence” in Russia.
Although Mrs Potanina was awarded $541.5 million (or $84 million by Mr Potanin’s calculation) she alleged “this was a mere fraction of what she should have received”. She was initially granted permission in the High Court to apply for financial relief under Part III but Mr Potanin applied to set the permission aside and was successful.
The judge agreed that Mrs Potanina would have got a much greater settlement if the case had been determined in England and Wales. However he took the view that the wife had no connection with England & Wales and was trying to “take advantage” of the more generous approach of the courts in this jurisdiction. He noted that the English court would probably find that the $41.5 million would not meet her reasonable needs if the case had been dealt with here. The judge agreed with the husband that if the case had been allowed to proceed there would be no end to “divorce tourism”.
The purpose of Part III is to alleviate if there has been no Financial Order or inadequate provision made in a foreign court, although it is not to “top up” an award made in another country. You will not get an award simply because there is a disparity between what the award was in the foreign country and what you would get in England.
If you have obtained a divorce, annulment or judicial separation overseas and either there has been no resolution of the finances or inadequate provision made you should seek legal advice as to whether you can made an application in England & Wales.