- Page Contents
- Specialist Divorce Settlement Solicitors
- Viability Of Fiancial Relief
- Court Procedure
- First Stage: Permission Stage
- Jurisdiction Requirements
- Legal Requirements
- Important Factors
- 2nd Stage: After Grant Of Permission
- Court Procedures For 2nd Stage
- How Much We Charge?
- How Much Is The Court Fee?
- Frequently Asked Questions (FAQs)
You may be able to apply to the English Courts for a financial settlement order against your former spouse if you have already been divorced abroad and you obtained no financial settlement or the financial settlement made in the other country was inadequate.
The English family courts have the ability to grant divorce financial provision even though a divorce may have been previously pronounced abroad and financial provision already made. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision made on divorce by a foreign court in a situation where the parties had substantial connections with England.
Divorce settlement solicitors at Sunrise Solicitors are specialists in dealing with divorce financial settlement matters. Our expert team of divorce financial settlement solicitors have wealth of knowledge and experience in divorce financial settlement matters.
Already divorced abroad and want to apply for financial relief in England? Contact our expert team of divorce financial settlement solicitors in London, Manchester or Birmingham for fast, friendly, reliable and fixed fee legal services for your divorce financial settlement application. Ask a question to our expert divorce financial settlement solicitors for free divorce settlement advice online by completing our enquiry form and one of our divorce settlement solicitors will answer your question as soon as possible.
In practice, an application for financial relief after overseas is most likely to become a viable way to proceed in cases where the foreign divorce was in a jurisdiction where the courts:
- do not have jurisdiction over foreign property;
- have no, or under-developed, mechanisms to force financial disclosure;
- demonstrate favouritism towards nationals over expat spouses;
- have no mechanism to share pensions;
- demonstrate favouritism towards those of one religion over another; or
- have no or under-developed mechanisms to enforce agreements and orders.
A person seeking financial relief from English Courts after a foreign divorce has to go through two step process in order to get financial settlement in England after a foreign divorce. The stage process is as follows:
First, the Court’s permission must be obtained to make an application for a financial award. The process begins with a without notice application for permission to proceed. The applicant must show that they have a 'substantial ground' for the application to proceed. The permission stage is designed to filter out weak applications before the respondent is put to the significant costs of defending an application that may be fatally flawed or have little merit.
At the permission stage the applicant must be able to show that they satisfy the jurisdictional requirements and that the legal test set out in in the leading case of Agbaje v Agbaje  has been met. The threshold is not high but higher than a "good arguable case".
In the main case on this area of the law, Agbaje v Agbaje which was heard by the Supreme Court in 2010, the Court said that the purpose of such further settlement is:
“the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England”.
In order to bring a claim in England, the parties must have sufficient connection to England as follows:
- 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.
For Part III proceedings to initiate in England, both the marriage as well as divorce must be legally recognised and valid under English law. Part III proceedings can only be brought if the applicant has not remarried.
The legal test on an application for permission is set out at paragraph 33 of Agbaje:
|"... the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than 'serious issue to be tried' or 'good arguable case' found in other contexts. It is perhaps best expressed by saying that in this context 'substantial' means 'solid'."|
Further guidance can be found in Traversa v Freddi  at paragraph 30 and 31:
|"It is clear that the section 13 filter is there to exclude plainly unmeritorious cases and, although, in the evaluation of substance, regard must be paid to overall merits, it does not call for a rigorous evaluation of all the circumstances that would be considered once the application has passed through the filter.
At the hearing of the section 13 application the judge will of course be conscious of the fact that, once through the filter, the applicant will have to clear a number of fences that the following sections erect. Unless it is obvious that the applicant will fall at one or more of the fences, his performance at each is better left to the evaluation of the trial judge."
Followring are the factors that the judge must take into account when assessing whether the applicant has satisfied the legal test set out in Agbaje are detailed in s16(2), MFPA 1984:
- the connection that the parties to the marriage have with:
- England and Wales;
- the country in which the marriage was dissolved or annulled, or in which they were legally separated; and
- any other country outside England and Wales;
- 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;
- 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;
- any right that 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;
- the availability in England and Wales of any property in respect of which an order in favour of the applicant could be made;
- the extent to which any order made is likely to be enforceable; and
- the length of time that has elapsed since the date of the divorce, judicial separation, Dissolution Of Civil Partnership, or nullity proceedings.
The application for permission must be supported by a very detailed personal statement in support of the Application. Such supporting statement of the Applicant should meticulously address:
- the background of the case,
- why both the marriage and the foreign divorce is entitled to be recognised as valid in England & Wales; and
- how the jurisdictional requirements are satisfied.
The statement should demonstrate that the merits tests set out in the legislation and case law have been met. Where available, very full documentary evidence should be exhibited to the statement. The statement in support of the application is also a good opportunity to discuss in detail the overall merits of the case beyond the application for permission.
The court must take into account the financial benefit that has been, or is likely to be, received in the foreign jurisdiction, and if the applicant has the right to apply for relief, and reason why that right has not been exercised. These factors cannot properly be addressed without evidence as to the law of the foreign jurisdiction. The applicant should therefore consider obtaining a short expert report from a specialist in the relevant jurisdiction to be attached to their statement in support of their application for permission.
After the permission to file an application for financial settlement order has been granted, the divorce financial settlement proceedings are very much Court-controlled. The Court will impose timetables for compliance with its orders and the parties will usually be required to personally attend all Court hearings. There may well be costs consequences for failing to adhere to timetables, to obey Court orders and to attend hearings.
Following is the step by step process for divorce financial settlement:
Step 1: Notice of Application - Form A
A divorce financial settlement application is started by filing with the Court Form A application ('Notice of an application for a financial order'), accompanied by a cheque in the sum of £255 without consent and £50 with consent, being the court fee payable.
Step 2: First Directions Appointment (FDA) date
The Court then sends each party a sealed copy of the Form A, accompanied by both a Notice of First Appointment (Form C) and a Notice of Response to First Appointment (Form G). Form C is the most important of these because:
- It contains details of the date and time of the First Appointment (that will be in 12 to 16 weeks' time);
- It contains the timetable for the case up to the initial hearing date of it (the "First Appointment"). This timetable provides the dates for the parties to file with the Court and to exchange with each other:
- A Statement of Information about their financial circumstances (known as a Form E) no later than 35 days before the First Appointment;
- A concise statement of the apparent issues between the parties;
- A chronology;
- Either a questionnaire setting out the further information and documents each requires from the other, or, a statement that no such information or documents are required;
- A completed Notice in Form G, stating whether the party will be in a position at the First Appointment to treat that hearing as a Financial Dispute Resolution hearing ("FDR").
- The Form C also provides that an estimate in Form H of any legal costs incurred by the party be produced to the Court at the First Appointment and a copy supplied to the other party.
Step 3: Financial statement - Form E
Each party to the divorce financial settlement completes a Form E (Financial Statement) and sends the same to the court at least five weeks before the First Directions Appointment (FDA). Copy of the form E is also sent to the other party.
Step 4: First Directions Appointment (FDA) Documents
The following documents are filed 2 weeks before the First Directions Appointment (FDA):
- A concise statement of issues;
- A chronology of events;
- A questionnaire to address issues arising from the Form E;
- A Form G, through which you tell the court whether the FDA meeting can be combined with the Financial Dispute Resolution (FDR) meeting. Typically the FDR meeting takes place after the FDA meeting.
Step 5. Legal Costs Incurred By Each Party- Form H
Each party completes and sends the court a completed Form H just before the FDA meeting, listing any costs they have incurred.
Step 6: First Directions Appointment (FDA) Meeting At Court
The first hearing of a divorce financial settlement application is termed "The First Appointment". The First Appointment is a directions hearing that has to be attended personally by both parties unless the court orders otherwise. The objectives of the First Appointment are to define the issues in dispute between the parties and to save costs. The hearing takes place before a member of the judiciary called a "District Judge" who must determine:
- The extent to which any questionnaires served by the parties seeking further information must be answered; and
- The documents that must be produced and to give directions for the production of such further documents as are necessary.
The Judge must also give directions about such matters as:
- The valuation of assets, most usually the matrimonial home;
- The obtaining and exchanging of expert evidence, most usually with regard to the value of pension assets, if required;
- The evidence to be produced by each party; and
- The preparation of further chronologies or schedules (where appropriate).
It is assumed that the District Judge does decide that an FDR is appropriate. It is possible for the court to treat the First Appointment as an FDR. It may be remembered that the Form G can be completed accordingly. However, experience is that few First Appointments are treated as FDRs. The reasons for this include:
- That there are usually outstanding issues regarding the valuation of the parties' assets, particularly the former matrimonial home;
- The replies to the parties' respective questionnaires and requests for documentation are required before negotiations can take place;
- An insufficiency of court time. The majority of courts list First Appointments with a time estimate of 30 minutes and FDR's for one hour, this with a requirement that the parties and their advisors attend an hour before the actual FDR for the purposes of negotiations and in order to narrow the issues between them.
Step 7: File Proposals
Both sides answer questionnaires, prepare evidence, and submit proposals to the court for the divorce financial settlement. Both sides also submit a second Form H, listing updated costs.
Step 8: Financial Dispute Resolution (FDR) Hearing
The second of the three most likely court hearings in respect of an ancillary relief application is the Financial Dispute Resolution ("FDR"):
- The FDR appointment must be treated as a meeting held for the purpose of discussion and negotiation.
- Both parties must personally attend the FDR unless the court orders otherwise.
- The Judge or District Judge hearing the FDR appointment must have no further involvement in the case, other than to conduct any further FDR appointment or to make a consent order if agreement is reached, or to make a further directions order.
- Not later than 7 days before the FDR appointment, the Applicant for ancillary relief must file with the Court details of all offers, proposals and the responses to these.
- This includes any offers, proposals or responses that are made wholly or partly "without prejudice" (that is, usually privileged from disclosure to the Court).
- At the conclusion of the FDR appointment, any documents filed with the Court under point 4 above and any filed documents referring to them must be returned to the party filing them at his/her request and not retained on the Court file.
- Parties attending the FDR appointment must use their best endeavours to reach agreement on the matters in issue between them.
- The FDR appointment may be adjourned from time to time.
- At the conclusion of the FDR appointment, the Court may make an appropriate Consent Order (if the parties have agreed terms of settlement) but must otherwise give directions for the future course of proceedings, including, where appropriate, the filing of evidence and fixing a final hearing date.
Experience has been that few cases settle at an FDR appointment. There are a number of reasons for this including:
- The fact that some cases simply seem incapable of being settled by agreement. They require judicial determination;
- In other cases the observations made by the Judge or District Judge with regard to the bases for settlement of a case do not find favour with one, other or even both of the parties;
- Some parties, quite understandably, want more time to consider decisions that, once made, could have profound repercussions for their futures.
It is, however, important to remember that no guillotine falls with regard to negotiations between the parties following the FDR appointment. The parties can continue to negotiate up to the time of their Final Hearing, if indeed there is one.
Step 9: Further Proposals
The negotiations continue between the two sides, including revised proposals for settlement that are sent to the court and to the other party.
Step 10: Final Hearing
"Final hearings" probably only occur in some 10% of cases involving an application for ancillary relief. If a final hearing is necessary, in addition to listing the matter for such, the Judge dealing with the case at the FDR stage is likely to make what is known as an "order for directions". Typically such an order will require the parties to:
- File (with the Court) and exchange (with each other) what are termed "narrative" or "Section 25" (of the Matrimonial Causes Act 1973) statements. That legislation contains details of the matters to which the Court is to have regard in deciding how to exercise its powers when dealing with ancillary relief applications, first consideration being given to the welfare, while a minor, of any child of the family who has not attained the age of eighteen;
- Provide updating of the financial disclosure previously made by them, whether in their respective Financial Statements (Forms E) or subsequently. It should be borne in mind that a period of 9 to 12 months may have elapsed between the filing and exchange of Forms E and the date of the final hearing;
- Produce up to date valuations of assets such as the former matrimonial home, business interests, pension funds and similar items.
Recent experience is that a minimum of two days will be allocated to the final hearing of a case, even where the issues between the parties and the extent of their assets are relatively limited. At a final hearing, the parties will each give evidence on oath that is subject to cross-examination. There is also likely to be a detailed consideration of the documentation produced by both parties. Generally, the parties' cases will be presented by barristers (or "counsel") who will both represent their respective clients and make representations on their behalf.
Depending upon matters such as the complexity of the case, judgment may not be given at the conclusion of the hearing but "reserved" to be given at some subsequent date.
Our Fixed Fees For Financial Settlement After An Overseas Divorce
Our fixed fees for various stages of the financial settlement proceedings after an overseas divorce are given in the table below. The agreed fixed fee will be dependent on the volume of work involved in the case and the complexity of the matter. Please be advised that our fixed fees do not cover the court fees and the Barrister's fees.
|Casework Stage||Fixed Fee Range (Acting For The Petitioner)||Fixed Fee Range (Acting For The Respondent)|
|Preparing and filing an application for permission to apply for financial settlement after an overseas divorce. All the work until decision on the permission application is covered.||From £800 + VAT To £1,200 + VAT||From £600 + VAT To £1,000 + VAT|
All the work from grant of permission until First Appointment Hearing which includes the following:
|From £2,000 + VAT To £3,000 + VAT||From £1,500 + VAT To £2,500 + VAT|
Preparation for First Dispute Resolution (FDR) Hearing which includes the following:
|From £3000 + VAT To £4,000 + VAT||From £2,500 + VAT To £3,500 + VAT|
Preparation for Final Heaaring which includes the following:
|From £4,000 + VAT To £5,000 + VAT||From £4,000 + VAT To £5,000 + VAT|
Our Hourly Rates For Financial Settlement After An Overseas Divorce
- Our team of divorce financial settlement solicitors will charge on hourly rate basis with hourly rate from £150 + VAT to £250 + VAT per hour in relation to your financial settlement proceedings after an overseas divorce. The agreed hourly rate will be dependent on hte complexity of the matter.
- The court fee for filing divorce financial settlement application in the family court is £255. Petitioners with very low income may qualify for court fee exemption.