Even though a divorce and the financial claims associated with it may have already taken place and been concluded in another jurisdiction, in certain circumstances it may be possible to apply to the English courts for further financial assistance.
It is only in certain limited cases where such an application may be permitted and there are many hurdles to get over before an order will be made. Firstly, the court must be satisfied that there is a substantial ground for making the application before any such claim is even entertained by the courts. The category of people who are entitled to ask the court for help in this way is limited depending upon a couple’s domicile, habitual residence or the presence of a former matrimonial home within England and Wales.
Before making an order for financial provision after an overseas divorce, the court must consider whether it is appropriate to make an order and will consider a number of factors, such as the connection each of the couple had with this country, the time which has elapsed since the divorce, the assets available in this country and the provision which has already been made abroad amongst other things. If the court does decide that an order is appropriate it then has to look at the same principles governing the division of finances upon divorce to decide the precise terms, nature and extent of the order.
The court is keen to keep a proper balance between not allowing a person to have “two bites of the cherry” if they are not satisfied with the outcome of a foreign court, whilst also ensuring that injustices are not done to a person who had strong connections to England and Wales during the marriage. The Supreme Court offered helpful and detailed guidance on the availability of these types of claims in the case of Agbaje v Agbaje when it upheld an order making further provision for the former wife following a divorce and financial proceedings overseas.
The same legislation can be used by people who want to obtain an order in this country by consent following an overseas divorce. For example, they may wish to obtain pension sharing orders of a UK pension following an overseas divorce. Certain assets in existence may be ignored or excluded by a foreign court and those assets will need to be dealt with here.