Where there has been a divorce in another country, there are many reasons why spouses may need to apply to the courts in England and Wales.  Jenny Arnold, senior associate solicitor at JMW Solicitors, sets out the approach of the courts to a foreign divorce.

The doors of the English and Welsh family courts are not just open to those people who have been divorced here. In certain circumstances, courts will consider an application for a financial order from a divorced spouse after a foreign divorce. This is the case even if that person has already obtained an order for financial provision in the country where they got divorced.

For spouses who have been divorced abroad, it is important to consider whether any of the following circumstances apply:

1. Implementing a foreign pension sharing order

It is often the case that divorcing spouses will have a number of pensions, some of which may end up being the subject of a pension sharing order upon divorce. Pension providers based in the UK will not recognise or implement a foreign pension sharing order. For that reason, individuals divorcing overseas who wish to share a UK pension will need to obtain an order from the courts here.

Before the end of the Brexit transition period, it was often possible to get an order from the court in England and Wales based on the location of a pension here alone. However, from 11pm on 31st December 2020, this is insufficient, and a connection based on domicile or habitual residence will have to be established.

If this is not possible, alternatives do exist, including the transfer of the pension to a UK pension scheme or taking advantage of English civil enforcement provisions. However, none of these options should be attempted without legal and tax advice in both England and Wales and the overseas country. Bear in mind that certain options do require cooperation between the parties, which may not be feasible in all cases.

Potential beneficiaries of an overseas pension sharing order should seek specialist advice regarding an application to the courts in England and Wales as soon as possible. Any delay could result in financial prejudice to the spouse who is to receive the benefit under the foreign pension sharing order. There is an additional risk that a pension-holder over 55 years of age could transfer or drawdown the UK pension, which would leave little, if any, pension to be shared.

Where individuals with substantial UK pension assets live overseas or have international connections, the ability to deal with UK pensions may be a consideration when deciding which country’s courts should deal with the divorce before proceedings have even begun. Obtaining early advice from an English family lawyer is absolutely essential.

2. The country where the divorce was instigated refuses to make a financial order

In some cases, the foreign court can refuse to make a financial order in that country if all or the majority of the assets are based in England and Wales. It is important to be aware that simply because the foreign court where the divorce is taking place refuses to make a financial order, this does not always stand in the way of the courts in England and Wales making a financial order.

Where there is a foreign divorce and there is a recognised form of connection to England and Wales, a claim could be brought for financial provision in the courts in England and Wales. Failure to consider this option could leave a divorcing spouse in a financially vulnerable position and unable to meet theirs and their children’s needs moving forwards. Simply because a foreign court refuses to make a financial order upon divorce, this does not mean that the same stance will be taken in the courts in England and Wales.

3. There is a financial order from your divorce in another country that does not meet a spouse’s needs

Where a foreign court makes inadequate or no financial provision for one spouse upon divorce, a spouse with substantial connections with England and Wales can apply to the courts for a ‘second bite of the cherry’.

The court must consider the appropriateness of any order for financial provision in all the circumstances of the case, including the strength of the connection with England and Wales and any adverse consequences associated with no or inadequate financial provision having been made by the foreign court. If the court considers that the order sought is appropriate to alleviate financial hardship after a foreign divorce, it is likely that the courts in England and Wales will determine that an order for financial provision is necessary.

It is important to be aware that in all three above scenarios the courts in England and Wales require the potential applicant to apply for permission, which acts as a filter for all potential claims. There needs to be a ‘substantial ground’ for making the application and there would need to be a ‘solid’ case before a potential applicant is allowed to proceed.

This permission test emphasises the need for any potential applicant seeking the assistance of the courts of England and Wales to take specialist advice on the merits of their application and how to plead their claim successfully.

Dealing with finances on divorce can be complex. This complexity is magnified where couples have connections with different countries around the world, many of which offer starkly different financial provision on divorce. Choosing where to get divorced can have profound repercussions for both parties and it is generally better to start off in a favourable jurisdiction than seeking assistance after an inadequate order has been made. The English courts are keen to avoid the impression that they stand ready to step in as some kind of worldwide matrimonial court of appeal so help from the courts here is by no means guaranteed. However, for those with a recognised connection with England and Wales, assistance may be available.