Applying for a Financial Order After an Overseas Divorce
You may be able to apply for a financial court order in the UK after a divorce overseas.
In this article, our UK Family Lawyers look at when you can make a claim using Part III of the Matrimonial and Family Proceedings Act 1984.
Contact the Family Law Team at OTS Solicitors in London for a phone, online or office consultation
What is forum shopping?
Forum shopping occurs when a member of an international family chooses the UK as the country in which to resolve their financial settlement after divorce.
Forum shopping is also referred to as divorce tourism or the race to divorce.
Most specialist London Family Law Solicitors are familiar with the concept of forum shopping. That’s because, in international circles, the family courts in England and Wales are traditionally seen as more generous to the economically weaker party to the marriage, which has historically often been the wife.
Sometimes it is not possible to get divorced in the UK and to ask the family court in London to make a financial court order. However, an unhappy former spouse may still have the option of bringing financial proceedings in England under Part III of the Matrimonial and Family Proceedings Act 1984.
Bringing financial proceedings in England under Part III of the Matrimonial and Family Proceedings Act 1984
If you did not start divorce proceedings in England and your ex-spouse secured a divorce and financial court order in their home country or country of choice, you may still be able to secure a financial court order in England.
There are strict criteria to bring a claim under Part III of the Matrimonial and Family Proceedings Act 1984. It is not open to every spouse with a connection to England to attempt to secure an improved financial settlement in the English courts.
The 1984 Act says you can bring a Part III claim if, relying on Section 15 of the 1984 Act, the applicant for the financial court order can show that on the date of their application, either they or their former spouse:
- Is domiciled in England and Wales, or
- Was domiciled in England and Wales on the date on which the overseas divorce took effect, or
- Has been habitually resident in England and Wales throughout the one year before the court application, or
- Was resident in England and Wales throughout the year before the date on which the overseas divorce took effect, or
- Has a beneficial interest in a home in England or Wales, and during the marriage, the home was classed as the family home. The home does not have to have been the family home throughout the marriage.
What is domicile and habitual residence for a 1984 Act claim?
Domicile and habitual residence are legal concepts.
You can be domiciled in the UK even though you or your spouse is not a British citizen.
You can be habitually resident in the UK even though you or your former spouse is living in the UK on a Skilled Worker Visa or other type of time-limited Work Visa or Family Visa.
If you are unsure if you or your former spouse meets the criteria for a 1984 Act claim, it's best to consult an expert Family Law Solicitor to check if you meet the eligibility criteria and to discuss your financial settlement options.
Family homes and 1984 Act claims
If you rely on having a beneficial interest in a dwelling house in England or Wales as the sole passport to starting an 1984 Act claim, then you need to be aware of three things:
- At some point during the marriage, the dwelling home must have been the family home, and
- The court cannot make a spousal maintenance order when the family home is the sole basis for the 1984 claim, and
- The court cannot make a financial court order that makes an award that amounts to more than the value of the family home.
The difference in what you can claim may run into millions, depending on whether you can claim domicile or habitual residence, or if you are relying solely on having a beneficial interest in a dwelling house. That’s why it's essential to take specialist family law legal advice on the legal basis of your 1984 Act claim.
If you are restricted to claiming the value of the dwelling home, it is vital that your Family Law Solicitors talk to you about the cost-benefit ratio of the court litigation. They need to consider with you:
- How much is the home worth?
- How much could the court proceedings cost?
- What is the potential size of your award?
- Are you likely to get a costs order?
- Are you likely to be able to enforce a costs order?
Some homes in areas such as Kensington and Chelsea are worth millions, and it's therefore worth considering making a Part III 1984 Act application, even though your sole eligibility criterion is the dwelling home criteria.
Applying for an order under Part III of the Matrimonial and Family Proceedings Act 1984
Applying for an order under Part III of the Matrimonial and Family Proceedings Act 1984 involves a two-stage process:
- Applicant applies for permission to make a Part III claim.
- If permission is granted, the applicant applies for a financial court order.
Obtaining permission is not always straightforward, as the applicant in a Part III claim must demonstrate that there are substantial grounds to support the application.
The applicant in a Part III claim must show that they have a solid and substantial case.
Most permission applications are made without the other party to the application being given notice about the permission hearing. If permission is granted without the other spouse being notified, the former spouse can apply to the court to set aside the permission if they have a case to argue that the permission should not have been granted.
Case law suggests that the family court should only stop the application from proceeding where the person applying to set aside the permission has a compelling case to do so. For example, if there is evidence that the court that gave permission was given misleading and inaccurate information.
Factors the court considers when making an order under Part III of the 1984 Act
Before making a financial court order after an overseas divorce, the court in England and Wales must consider whether, in all the circumstances of the case, it would be appropriate for a financial court order to be made by a court in England and Wales. If the court is not satisfied that it would be appropriate, the court should dismiss the Part III application.
Section 16 of the Matrimonial and Family Proceedings Act 1984 requires the court to consider the following factors when deciding whether a court in England and Wales is an appropriate venue for the application:
- The connection which the parties to the marriage have with England and Wales, and
- The connection which those parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated, and
- The connection that those parties have with any other country outside England and Wales, and any financial benefit which 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 the operation of the law of a country outside England and Wales, and
- In a case where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, 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, and
- 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, and
- The availability in England and Wales of any property in respect of which an order under the Act in favour of the applicant could be made, and
- The extent to which any order made under the Act is likely to be enforceable, and
- The length of time which has elapsed since the date of the divorce, annulment or legal separation.
International families and financial court orders after an overseas divorce
International families often own assets and property in several countries and continents. Every country has its laws governing the division of assets after a separation. Knowing that England may provide a financial settlement worth millions more than in another jurisdiction can tempt high-net-worth families to consider a Part III application.
The purpose of a 1984 claim is to prevent hardship and injustice rather than to ensure someone’s financial settlement is topped up to the max because the court in London is seen as generous to the finally weaker spouse.
The case of Agbaje v Agbaje [2010] UKSC 13 explains when a Part III claim is appropriate. In that case, the Supreme Court stated that Part III claims are intended to prevent real hardship and serious injustice. Mrs Agbaje was permitted to pursue her Part III claim and was granted a financial court order in England following divorce and financial proceedings in Nigeria. The Nigerian financial order did not meet Mrs Agbaje’s needs. The English court concluded that the hardship and injustice that would flow from the court not making an order under the 1984 Act meant it was appropriate for the court to step in and make an order. Families should remember that hardship and injustice are measured against the family's wealth and standard of living.
How the Family Lawyers at OTS Solicitors can help you
If you are living in England and worried about whether you can start no-fault divorce proceedings or concerned about how you will manage financially after an overseas divorce and financial order then it’s worth consulting with our expert Family Law Solicitors in London to assess your options and to advise on the prospects of making a Part III claim.
Our Family Solicitors represent clients from across the globe and are the 2025 award winners of the SME Best Immigration & Family Law Firm – Southern England in the UK Legal Awards.
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