Divorce and Financial Matters
Practical advice in respect of divorce and the intricate financial issues arising from the breakdown of a relationship.
Prior to the enactment of Part III of the Matrimonial and Family Proceedings Act 1984 (“MFPA”), some spouses residing in the jurisdiction of England and Wales were exposed to hardship resulting from foreign divorces. This was due to a combination of the liberality of the rules regarding the recognition of overseas divorces, and the restrictive approach of some overseas jurisdictions when deciding financial provision.
An example of such hardship can be seen in the case of Quazi v Quazi. On the facts, the husband and wife lived in a property in Wimbledon with their son, the property was held in the husband’s sole name and when he pronounced Talaq in Pakistan, only limited financial provision was made to the wife. The wife applied to the courts because she wanted to obtain an interest in the property and maintenance from the husband. However, the court’s hands were tied as the overseas divorce was recognised as valid under English law, which meant that the court had no power to make financial provision. The outcome was viewed as unjust, and in their judgments the justices questioned the need for reform.
Part III of the MFPA was introduced to alleviate the outcomes in cases like Quasi v Quasi by allowing the court to consider making financial provision in certain situations. The court has two inter-related duties before making an order: first, it must consider whether the courts of England and Wales is the appropriate venue for the application, looking at: i) the connection the applicant has to England and Wales; ii) the financial benefit the applicant (or a child of the family) has received or is likely to receive as a result of the overseas order; and iii) the length of time which has elapsed since the overseas decree was granted. Further, when deciding whether to exercise its powers, the court must consider all the circumstances of the case, with the first consideration being the welfare of any minor child; the s.25(2) Matrimonial Causes Act 1973 (“MCA”) factors; and where an order has been made by an overseas court for the transfer of property or payments, the likelihood of the other party to the marriage complying with such an order.
The applicant will need to obtain permission from the court to make the application in the first instance by showing that their application has merit. Proving ‘hardship’ or ‘injustice’ is not a prerequisite to making an application, but it may persuade the court that an application is appropriate.
1. Quazi v Quazi  3 All ER 897
2. Matrimonial and Family Proceedings Act 1984 s.16
3. Agbaje v Agbaje  UKSC 13 at 73
The court has wide-ranging powers when considering whether to make any of the orders it may have made in matrimonial finance proceedings in England and Wales including: financial provision orders, pension sharing orders and property adjustment orders contained in the MCA.
The Supreme Court said in Agbaje v Agbaje that where the English connections of the case are very strong there may be no reason why the application should not be treated as if it were made in purely English proceedings.
Notwithstanding the above, any applicant should still proceed with caution; the purpose of the MFPA was not to encourage divorcing spouses to apply to the English courts to “top-up” foreign awards in an attempt to equate them with what would have been awarded by a court in this jurisdiction.
The court will not easily cast aside Financial Orders made in overseas jurisdictions, or readily find the order of a foreign court to be unjust. Careful consideration will be given to the intention behind the overseas Order and the facts and circumstances surrounding the decision. The objective behind any financial award is to overcome any injustice caused to one party.
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