Financial Settlements, International Families and Non-UK Foreign Divorces

English Court Jurisdiction in International Divorces and Financial Court Orders

International divorce is highly complex. It is becoming increasingly common, as many people living in the UK are not British citizens. Their families may be resident in the UK on visas or with Indefinite Leave to Remain status.

In this article, our Family Law Solicitors explore English court jurisdiction in international divorces and financial court orders.

Contact OTS Solicitors Today for Expert Family Law Legal Advice.

Court jurisdiction

Establishing court jurisdiction is crucial, as until you know which court/s have jurisdiction to hear your divorce proceedings and to make a financial court order, you cannot decide which court jurisdiction to choose.

Getting court jurisdiction wrong can cost ££££. Different courts may award vastly different levels of financial settlement.

English court jurisdiction

You can apply for a divorce in England and Wales if you or your spouse meets one of these six criteria:

1. Either or both spouses are domiciled in England and Wales.
2. Both spouses are habitually resident in England and Wales.
3. Both spouses were last habitually resident in England and Wales, and one spouse continues to live in England or Wales.
4. The respondent to the divorce proceedings is habitually resident in England and Wales.
5. The divorce applicant is habitually resident in England and Wales and has resided there for at least one year immediately before making the divorce application.
6. The divorce applicant is domiciled and habitually resident in England and Wales and has resided in the country for at least six months immediately before the divorce application.

Domicile and habitual residence

Domicile and habitual residence are legal concepts. You can be domiciled in the UK even though you are not a British citizen. You and your children can be habitually resident in London even though your family is subject to UK immigration control and living in the UK on visas. That’s why it's best to take early specialist family law advice to check your domicile and habitual residence and its impact on where to start divorce and financial court proceedings.

Starting divorce proceedings in England

Generally, if there is a significant financial disparity between the assets of a husband and a wife, the financially weaker party is better off starting no-fault divorce proceedings in England. It is always worth checking this point. While England and courts in London are known to be generous in divorce financial settlements, other countries can be. Your family law advice needs to be specific to your situation and to your choice of alternative jurisdictions.

Applying for a financial court order after an overseas divorce

A former husband or wife can apply for an order under Part III of the Matrimonial and Family Proceedings Act 1984 if they meet the criteria. The legislation is helpful if you were divorced overseas and have either received no financial settlement or a limited and unfair one.

You can apply for leave to bring a claim if:

1. You must have been legally divorced – this means your divorce must be valid in the country in which it was obtained.
2. You must not have remarried.
3. You must have a sufficient connection with England or Wales.

Sufficient connection to England for a Part III financial claim

To establish a sufficient connection to England to apply for a Part III financial order, you must

1. Demonstrate that either you or your ex-spouse was domiciled in England at the time of the overseas divorce or at the date of the Part III application, or
2. Prove that either you or your former husband or wife was habitually resident in England for 12 months before the finalisation of the overseas divorce or for 12 months before the date of the Part III application, or
3. Establish that either you or your ex-spouse has an interest in a property in England or Wales, and the property was a matrimonial home.

To meet the third criterion, your name does not need to be on the title deeds to the property. It is sufficient to claim a beneficial interest in a family home owned in the name of your former spouse. Any Part III claim commenced based on a sufficient connection through the family home is limited to the value of the property.

Domicile and habitual residence are legal concepts. You may therefore meet the definition of being domiciled in the UK even though you are not a British citizen. Equally, a British citizen may not be domiciled or habitually resident in the UK. Someone subject to UK immigration controls may be habitually resident in the UK. A Family Law Solicitor can advise on jurisdiction and the meaning of a family home for a financial claim after an overseas divorce.

Applying for permission to apply for a Part III order

Financial relief after an overseas divorce involves a two-stage court process:

1. Apply for court permission to make the application, and
2. If permission is granted, the court will decide the merits of the application after directions hearings and evidence is filed.

The leave stage is designed to filter out applications that lack merit or do not meet the criteria. When deciding the leave application, the court will consider:

1. Your connection or your ex-spouse's connection to England and Wales.
2. Your connection or your ex-spouse's connection to the country where the overseas divorce was granted and to any other countries.
3. Any financial benefit which you or a child of the family has received, or is likely to receive, in an overseas country.
4. The financial orders made in the country that granted the overseas divorce, and whether the order has been complied with, and if not, is likely to be enforced.
5. The legal rights available to claim a financial settlement from your former spouse in any other country other than the country where you divorced or England.
6. What property is held in England, and what orders could be made against the property?
7. Whether an order under Part III is likely to be enforceable.
8. The length of time that has passed since the overseas divorce or separation.

The Supreme Court decision in Potanina v Potanin has provided some clarity and direction on the leave process and the threshold an applicant must meet to secure permission to bring a substantive application.

If the court permits you to make a Part III claim, the full court process is like that for a financial claim after a no-fault divorce in England. This means there is a requirement for evidence, financial disclosure and, where necessary, valuations and expert reports.   

Financial court orders under a Part III application

The court can make the same financial court orders that it could make if you applied for a financial court order after a no-fault divorce in England. This means the court can order a lump-sum payment, pension provision, property transfer, spousal maintenance, or child support. However, if your Part III claim is solely based on the family home criteria, the court is limited to making a court order that reflects the value of the family home.

When making an order after an overseas divorce, the court will consider the welfare of any child of the family and all the factors contained in the Matrimonial Causes Act 1973. These include both former spouses' income and capital needs, as well as factors such as the standard of living enjoyed during the marriage and the existence of any prenuptial agreement or contributions argument.

Consult with the international Family Lawyers at OTS Solicitors

The Family Lawyers at OTS Solicitors have a global client base as the firm specialises in immigration, worldwide movement and family law. Our specialist Family Law Solicitors are therefore experienced in advising on court jurisdiction and the complexities of international divorce. If you need legal advice on international divorce or bringing a financial claim after divorce proceedings overseas, then our experts can help you.

Contact OTS Solicitors Today for Expert Family Law Legal Advice.

Appointments at our offices in central London or online.

Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil, Tagalog/Ilonggo, Urdu/Punjabi.

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