As often arises, parties may have been married and divorced overseas but have not been able to resolve all their finances satisfactorily. Shamin Ali, an associate solicitor with TBI’s Private Family Law Team considers the issue in this article.
The English Courts have the power to grant financial relief to a party, however this does not mean that the applicant will get a second bite of the cherry so to speak from perhaps an award made overseas but will consider the award based on what the applicant would have been entitled to had they initially instigated financial remedy proceedings in the UK.
The applicant would be seeking financial provision under Part III of the Matrimonial and Family Proceedings Act 1984. This legislation was enacted to give English courts the power to grant relief after a marriage has been dissolved (or annulled) in a foreign court.
The basic criteria to be met is that the marriage and the divorce must be legally recognised and be valid under English law.
Further the Applicant must not have remarried. The court will consider whether adequate financial provision was made where the parties had substantial connections with England. The courts will also look at a number of factors such as the financial benefit that the applicant has already received or whether the applicant has failed to take advantage of a right under the foreign law to claim financial relief. The hardship or the injustice which would result if no award were made would be a relevant factor.
The amount of financial provision awarded will depend on all the circumstances of the case, but three general provisions should be applied, firstly the primary consideration is the welfare of any child of the marriage, secondly it will never be appropriate to make an order which gives the applicant more than he or she would have been awarded had all proceedings taken place within England and Wales and thirdly where possible provision is made for the reasonable needs of each spouse.
The applicant must also satisfy the judicial requirement in that:
• Either party is domiciled in England and Wales on the date the application or permission took place or
• Either party has been habitually resident in England for at least one year ending on the date of the application or the date that the divorce took place
• Either party has at the date of the application an interest in a property in England and Wales that at some point was used as the matrimonial home.
An example of how the court applied the above was how the case of Agabaje v Agabaje heard in 2010 was dealt with, where an appeal to the higher courts was allowed.
In this case both Mr and Mrs Agabaje were born in Nigeria. They acquired UK citizenship in 1972. This was a long marriage of 38 years. All five of their children were born in the UK (and all but one child educated in the UK). In 1975 Mr A, bought a property in England in which the children stayed with their nanny. For the majority of their married life Mr A and Mrs A lived predominantly in Nigeria. When they separated in 1999, Mrs A came to live in the UK in their English property and remained living there.
In 2003 Mr A issued divorce proceedings in the Nigerian Courts and Mrs A sought financial relief. The Nigerian courts awarded her a life interest in the property in Lagos in Nigeria (which had a capital value of £86k and a lump sum equivalent to £21k.
However, Mrs A sought financial relief from the English courts and was granted permission. She was subsequently awarded a lump sum equating to 65% of the sale proceeds of the English property of about £275,000 on the condition that she relinquish her life interest in the Lagos property. The Supreme Court ruled that a divorce settlement reached in a Nigerian Court would have caused real hardship to the Wife which is why it ordered that she be awarded a more generous settlement.
