By virtue of Pt 3 of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984), English Courts have the power to grant financial relief where a marriage has been dissolved or annulled or the parties have been legally separated in an overseas jurisdiction. The dissolution, annulment or legal separation must, however, be recognised as valid in England and Wales before MFPA 1984 can be invoked.
Part 3 of MFPA 1984 remedies the potential hardship suffered following an overseas divorce by enabling the Court to make Orders for financial provision including property adjustment, pension sharing, Orders for sale, interim Orders, avoidance of disposition Orders and transfers of tenancies.
Considerations for the Court
Before making any Order for financial relief, the Court has a duty to consider whether in all the circumstances of the case, it would be appropriate for such an Order to be made by a Court in England or Wales. The Court should also have regard to the following considerations in MFPA 1984, s 16:
- The connection which the parties have with England and Wales.
- The connection which the parties have with the country in which the marriage was dissolved.
- The connection which those parties have with any other country.
- Any financial benefit which the applicant has received, or is likely to receive, as a result of the dissolution of the marriage overseas by virtue of any agreement or the operation of the law of a country outside England and Wales.
- In a case where an Order has been made by a foreign Court requiring the other party to the marriage to make any payment or transfer any property, the financial relief given by the Order and the extent to which the Order has been complied with or is likely to be complied with.
- Any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and if the applicant has omitted to exercise that right the reason for that omission.
- The availability in England and Wales of any property in respect of which an Order in favour of the applicant could be made.
- The extent to which any Order made under this section of this Act is likely to be enforceable.
- The length of time which has elapsed since the date of the divorce, annulment or legal separation.
In considering whether to exercise its powers and grant financial relief, the Court’s first consideration must be the welfare of any minor child of the family in addition to the factors set out in s 25 of the Matrimonial Causes Act 1973 (MCA 1973).
Pre-Agbaje
Prior to Agbaje v Akinnoye-Agbaje [2010] UKSC 13, [2010] 2 All ER 877 there were very few reported successful cases brought under Pt 3 of the MFPA 1984.
In M v M [1994] 2 FCR 448 a divorce had been granted in France, and provision had been made by the French Court for the maintenance of the wife and children. Dissatisfied with the position, the wife appealed in the French Court, and made a parallel application for provision under Pt 3. Leave was initially granted but later set aside by Justice Thorpe who stated that: “It offends common sense as well as principles of comity that any litigant should be free to start again from scratch in this jurisdiction, having taken financial claims to a realistic conclusion within the French system.”
Adamski v Sullins [2002] EWHC 1157 (Fam) is one of the few successful cases brought under Pt 3. In this case the parties married, and later divorced in Texas. The Texan Court followed the community of property system that operated in Texas whereby property held in the sole name of either spouse prior to the marriage, remained the property of that spouse upon dissolution of the marriage. The Order effectively left the wife with nothing, as the matrimonial home in London had been registered in the husband’s sole name. Upon application, the wife was granted leave to apply for financial provision under Pt 3, and subsequently awarded a lump sum. Justice Bodey commented that: “It is only appropriate for the English Court to intervene with financial relief to the minimum extent necessary so as to remedy the injustice perceived to exist without intervention”.
It is apparent that prior to Agbaje, the principles of exceptionality, hardship, injustice and comity played key roles in determining applications under Pt 3.
Findings in Agbaje
In this case the husband and wife had been married for 38 years prior to their divorce on the husband’s petition in Nigeria in 2005. Both parties had dual Nigerian and British citizenship and all five children had been born in England. The wife had lived in England continuously since 1999.
The assets in the case totalled approximately £700,000. Upon the wife’s application for financial relief, the Nigerian Courts awarded her a life interest in a property in Nigeria (valued at £86,000) and a lump sum of approximately £21,000.
The wife was granted leave to make an application under Pt 3, and at the substantive hearing before Coleridge J, the wife was awarded 65% of the proceeds of sale of the London property in which she had been residing. This was expected to generate a lump sum of approximately £275,000, representing 39% of the total assets.
The Court of Appeal allowed the husband’s appeal, and an appeal committee of the House of Lords granted leave to appeal from that decision. The matter then came before the Supreme Court in November 2009. The judgment, given in March 2010, gave guidance on the proper approach to take in relation to applications under Pt 3.
Lord Collins stated that in determining an application under Pt 3, the Court was under a duty to ask itself two inter-related questions: whether England/Wales was the appropriate venue for the application and whether an Order should be made having regard to the matters referred to in s 18 (all the circumstances of case, the welfare of minors and the s 25 factors).
Lord Collins held that the purpose of Pt 3 was not to allow a spouse to take advantage of the more generous approach taken in England and Wales to financial provision, but that equally, hardship, injustice and exceptionality are not preconditions for a successful application. Furthermore, Pt 3 does not state that it should be exercised only in exceptional circumstances, nor is there any statutory basis for limiting relief to the minimum necessary to remedy injustice.
Lord Collins held that the quantum of any award was linked to the strength of the connection of the parties to England as well treated as if it were made purely in English proceedings. In contrast where the connection to England is tenuous, and the spouse has already received adequate provision from the foreign Court, then it is inappropriate to ‘top up’ that provision”. He added, however, that it would never be appropriate to award an applicant more than he/she would have received had proceedings been issued in England/Wales in the first place.
Applications post-Agbaje
In Francesco Traversa v Carla Freddi [2011] EWCA Civ 81, the parties were married, and later divorced, in Italy. Shortly before the parties separated, the wife had purchased a property in England which she had registered in her sole name. Upon separation, she obtained a separation Order conferring sole title to the English property to her, together with an Order for maintenance for the child. The husband subsequently sought leave to make an application under Pt 3 for the transfer of the English property to him.
At first instance, the husband’s application was refused on the basis that he had not been treated unjustly by the Italian Court. On appeal, Thorpe LJ held that Bodey J had misdirected himself since the judgment of Lord Collins in Agbaje clearly states that injustice is not a precondition to a successful application. As such, the husband’s application for leave was considered afresh.
In an attempt to defeat the husband’s appeal, the wife in this case argued that since the Order of the Italian Court was that of a Brussels I regulation state, it was entitled to recognition in England, thus preventing any award under Pt 3. She also sought to argue that in any case, the husband’s prospects of obtaining any substantive Order were very slim and that accordingly he could not be said to have any “substantial ground” for the purposes of s 13.
However, on hearing the appeal Thorpe LJ held that Brussels I was not engaged, since its application is limited to that of maintenance provision, and in this case, the husband was seeking a property adjustment Order. As such, an application under Pt 3 was not precluded and it was held that it does not follow that an Order of a Brussels I regulation state that contains an element of maintenance fixes jurisdiction upon that state in relation to all financial issues.
Accordingly the husband’s appeal was allowed and leave was granted for an application under Pt 3 of MFPA 1984.
Similarly, in Schofield v Schofield [2011] EWCA Civ 174 a wife’s application for permission to apply under Pt 3 for a pension sharing Order was refused on the basis that she had failed to show that she had established a substantial/solid ground as the Court was unable to confidently say that the probability of her achieving a substantive Order at trial was greater or equal to 50%. Upon appeal it was held that the approach in the first instance was clearly wrong following the rulings in Agbaje and Traversa. In addition to this, Thorpe LJ added that it is important as a matter of public policy that there be judicial collaboration where parties have divorced in one jurisdiction, but where pension funds are rooted in another jurisdiction so that an applicant in the former jurisdiction is not
deprived of pension rights. In dismissing the wife’s application the judge at first instance had acted against this principle and accordingly the wife’s appeal was allowed.
In M v M [2011] EWHC 3574 (Fam), the wife sought to obtain an Order for interim periodical payments pending the outcome of her application for financial relief under Pt 3. By virtue of s 14 of MFPA 1984, no Order for interim maintenance can be made before leave has been granted, and jurisdiction cannot be based solely on an interest in a former matrimonial home within the jurisdiction. Furthermore, the applicant has to show that they are in “immediate need” of funds.
In this case it was held that “immediate” should be construed to mean “current” as opposed to urgent and there was no need for the wife to show that she was in urgent need of funds. Indeed, King J went on to say that Agbaje: “made it clear that neither hardship nor injustice is a precondition for the exercise of the jurisidiction nor is it only appropriate for the English Court to intervene with financial relief to the minimum extent necessary.”
Conclusion
Following Agbaje and the subsequent case law outlined above, it seems safe to say that in deciding applications under Pt 3 in future, the principles of exceptionality, hardship, injustice and comity will no longer be deciding factors.
Indeed, in line with the legislative purpose of MFPA 1984, the connection of the parties with England, the welfare of children, the MCA 1973, s 25 factors and the other considerations set out at s 16 of MFPA 1984 are likely to be the determining factors now in an application under Pt 3.
Furthermore, it is clear that dual adjudication is at times appropriate, and in such circumstances judicial collaboration is encouraged.
Requirements for a Pt 3 order
Before an application for financial relief may be made under Pt 3 of MFPA 1984, leave of the court must be obtained. Section 13 of the Act states 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” and that leave “may be granted subject to such conditions as the Court thinks fit”.
In addition to this, the court will only have jurisdiction to entertain an application under Pt 3 of the Act in cases where:
- Either party to the marriage was domiciled in England or Wales on the date at which an application for leave was made/the dissolution, annulment or
legal separation took effect. - Either party to the marriage was habitually resident in England or Wales for a period of 12 months before the application for leave was made/the dissolution, annulment or legal separation took effect.
- Either or both parties to the marriage had at the date of the application for leave, a beneficial interest in possession in a dwelling house in England or
Wales that had been/was the matrimonial home of the parties.
It is worth noting that in cases where jurisdiction is secured by virtue of the existence of a matrimonial property in England and Wales alone, the power of the court is restricted to that of a lump sum order, or an order in respect of the property itself; income orders are not available in such cases.
Mariko Wilson is a trainee solicitor and Kim Beatson is Partner and Head of the Family Law department at Anthony Gold. For further information email Kim Beatson or call 020 7940 4000.
