I was divorced in America but live in the UK. Can I still get financial relief?

By Nicole Francisco LLB

The Law on Recognizing an overseas divorce in the UK

Under the Family Law Act 1986, an overseas divorce obtained by means of judicial or other proceedings is recognized in the UK only if:

  • it is effective under the law of the country in which it was obtained; and
  • at the relevant date (that is, the date on which proceedings were begun), either party was either habitually resident or domiciled in that country or was a national of that country.

The term ‘judicial or other proceedings’ requires that there should have been some formal proceedings, either before a court or some other formal body recognized by the state for that purpose (for example, in Pakistan the Union Council). It is an important aspect that the judicial or other body should be impartial as to the outcome of the proceedings.

An overseas divorce obtained otherwise than by means of proceedings is recognized in the UK if:

  • it is effective under the law of the country in which it was obtained; and
  • at the relevant date (that is, the date on which the divorce was obtained), both parties were domiciled in that country or one was domiciled there and the other was domiciled in a country which recognized the divorce; and
  • neither party had been habitually resident in the UK throughout the period of one year immediately preceding that date.

The term ‘otherwise than by means of proceedings’ covers, for example, a meeting of family members convened to dissolve a West African customary marriage or to hear the pronouncement of talaq.

Procedure:

The procedure to obtaining a Financial Order in the UK after an Overseas divorce is split into two stages.

Stage One: Request permission:

The first step is to file a Form D50E[1], which requests permission to be granted to make an application for an order for financial relief. This application is preliminary and safeguards against frivolous or time-wasting applications.

The criteria to which has to be met to enable you to apply is clear and concise.

  1. The Divorce must be recognized as legally valid in the country it was obtained. If it is legally recognized and valid overseas, the court will accept it as legal for the purpose of the application of the law in England.
  2. You must have not remarried
  3. There must be a sufficient connection between yourself and England.

Sufficient connection’ defined:

The Supreme Court case of Agbaje v Agbaje [2010][2], sets out the legal test that must be satisfied for the courts to consider granting permission.

The sufficient connection with England test requires:

  • ‘Either party is domiciled in England and Wales at the time of the foreign divorce or at the time of the application; or
  • Either party has been habitually resident in England and Wales for 12 months at the time of the foreign divorce or at the time of the application; or
  • One party has an interest in a dwelling house in England and Wales which had been a matrimonial home (when claims are limited to the value of the house);
  • Other narrow criteria following recent EU legislation’[3].

The Court must also by virtue consider the following factors when assessing whether the applicant has satisfied the test in Agbaje(also found detailed in s16(2) MFPA 1984) :

  1. ‘ the connection that the parties to the marriage have with England and Wales;
  2. the country in which the marriage was dissolved or annulled, or in which they were legally separated; and
  3. any other country outside England and Wales;
  4. any financial benefit that the applicant, or a child of the family, has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or operation of the law of a country outside England and Wales…’[4]

Each application for a financial order after an overseas divorce will be considered and decided on its own merits. Once satisfied the court will grant you leave and this enables you to move on to the second stage of the process, which follows the procedure as if you were to file for a financial order following a divorce in the UK.

Stage Two: After permission is granted:

The second step is to file a Form D50F[5], which allows the applicant to indicate the specific orders sought; provide evidence that permission for the application was granted through a court order and enables them to provide the necessary evidence and a statement to satisfy the criteria detailed in stage one required for the application to proceed. If successful, the process to be followed is the same as the normal financial order process as if the application had initially been made in the UK.

This includes stages such as:

  • The Notice of Application – Form A
  • First Directions Appointment Date (FDA)
  • Financial Statement – Form E
  • First Directions Appointment (FDA) Documents, etc.

Written by Nicole Francisco, Legal Assistant at Brady Harvey Legal. She holds an LLB Degree from the University of Hertfordshire and has completed her LLM LPC, also at the University of Hertfordshire.

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