Presentation on theme: "DIVORCE AND FINANCIAL RELIEF AFTER A FOREIGN DECREE"— Presentation transcript:
1DIVORCE AND FINANCIAL RELIEF AFTER A FOREIGN DECREE Gina Allwood7 BEDFORD ROW
2FINANCIAL ORDERS FOLLOWING OVERSEAS DIVORCE: INTRODUCTIONSome married couples have ties to one or more countries.Different countries have different divorce, financial relief and children laws.As a result, what may apply in one country can be quite different in another.What happens if a divorce is granted overseas?Does this mean that the English Courts are prevented from dealing with matters once an order has been made abroad?
3AFTER FOREIGN DIVORCEIn certain situations, Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA) allows the English courts to make financial orders following a foreign divorce.Two stage application process.The first step is to establish whether the English Courts have the jurisdiction (the ability) to hear the application.
4STEP 1;- 4 CONDITIONS;-Foreign decree must be entitled to recognition in EnglandFamily Law Act 1986 and Brussels II (for EU Countries,judgment is recognised without any special procedure -Art 21)Leave of Court required (Matrimonial and FamilyProceedings Act 1984: s.13.) This will involve showingsubstantial grounds for Court to exercise its powers unders.12 MFPA’84.Parties must have a genuine connection - either or bothparties habitually resident in England for a minimum of 1year before the application was made or decree of divorce; oreither/both had an interest in a dwelling house used as a FMH.Forum Conveniens - should it be heard in England? Burden ofproof on A.
5STEP 2 – FORUM CONVENIENS Apply for Leave or the Courts permissionThe Court must consider the following;-The connection of the parties to England / other CountriesFinancial benefits likely to be received under foreign lawAny right to apply for financial relief under foreign lawAvailability of property in England in respect of which anorder could be made.Extent to which the order is enforceable.Length of time elapsed since foreign decree.
6IF LEAVE IS GRANTED……The court will consider the merits of the case, and whether it needs to make any orders adjusting the couples finances, including interim relief.This legislation has recently been considered at some length by the Supreme Court.The Court of Appeal refused to make any provision for a wife, following a divorce in Nigeria.The Supreme Court overturned this decision, because of the families strong connections to England.
7INTERIM RELIEF MFPA s.14- Interim Maintenance MFPA s.24 -Preventing transaction intended to defeat possible application for AR (s.37 MCA 1973).
8MAINTENANCE Maintenance Orders:- English Courts also have jurisdiction to make an order for financial Provision in cases where there has been a failure to provide reasonable maintenance.A foreign decree of divorce recognised in England does not necessarily put an end to maintenance ordered by an English Court.A Court can make an order for Periodical Payments in a case where one is domiciled and resident abroad and has not assets in England.
9WORLDWIDE FREEZING ORDERS Civil Jurisdiction and Judgments ActCivil Jurisdiction and Judgments Act 1982 (Interim Relief)Enables Courts to grant injunctions over property wherever situated in relation to disputes over maintenance, lump sums and property rights.
10PITFALLS :-( The foreign Court will refuse to enforce the injunction The Order is ineffectualNo undertakings as to damagesLimited to disposition party about to make + GUILTY INTENTION must be shown!
11HOWEVER.. A Court will decline to exercise its powers where any order It might make would be wholly ineffective (case law prior to Conventions)“Once competent, always competent” (Australia)
12PRACTICE Which Court? High Court or County Court MPFA’84 Service out of the jurisdictionConsider Witnesses - A witness outside the Country cannot be compelled to attend a Substantive hearing.Consider ways of obtaining other evidence ie: Consul of Requesting Country can be appointed as Special Examiner to take evidence and invite witnesses to produce documents.
13RECENT CASE LAW FRANCESCO TRAVERSA v CARLA FREDDI  EWCA Civ 81 AGBAJE v AGBAJE  UKSC 13
14“SUBSTANTIAL GROUNDS” The threshold test for whether there was "substantial ground" for applying for financial relief as required under the MFPA 1984 s.13(1) was as set out by the Supreme Court:- Agbaje v Agbaje  UKSC 13,  1 A.C. 628, No gloss on that guidance was needed. An application under s.13(1) should be made without notice as provided by the Family Proceedings Rules (1).
15PURPOSE OF THE ACTVSDVSDIn making its order the court was clear the purpose of the Act was not to allow someone with “some” English connections to take advantage of what may well be the more generous approach in England to financial provision. The Act should only be applied towards the alleviation of inadequate financial provision being made by a foreign court, where the parties had substantial connections with England. The fact that there might be a disparity between an award of a foreign court and what would be awarded in an English Court is not enough to allow an application using Part III.
16SUMMARY ANCILLARY RELIEF DIVORCE : FOREIGN PROCEEDINGS APPLICATIONS WITHOUT NOTICEPERMISSIONPROPERTY ADJUSTMENT ORDERS : SETTING ASIDE :THRESHOLD TEST UNDER S.13(1) MFPA 1984 :
17REFORMS Matrimonial Causes Act 1925 S.25(A) v Matrimonial and Family Proceedings Act 1984 s.17FINANCIAL RELIEF … OR….CLEAN BREAK??