1. First the court must grant permission to apply.
2. The court will adjudicate on the application; in this case the relief it may grant is practically identical to that which would be granted after a decree of the English and Welsh Courts.
It is provided that an application for Financial relief may be made where
a) a marriage has been dissolved or annulled, or the parties to a marriage have been legally seperated, by means of judicial or other proceedings in an overseas country, and
b)the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales. The classes of divorce etc which would be recognised as valid are those set out in the Recognition of Divorces and Legal Separations Act 1971 ss2-6.
Jurisdiction therefore depends on the existence of a divorce etc which would be recognised on the requirements of MFPA 1984, s15 which provides that the court shall have jurisdicition if any of the following three jurisidictional requirements are satisfied.:
1. domicile of either party at the date of application for leave or as at the divorce etc.
2. the habitual residence of either party for one year ending with either the application for leave or the divorce etc.
3. either party having at the date of the application for leave a beneficial interest in possession in a dwelling house in England and Wales which was at some time in the marriage a matrimonial home of the parties to the marriage.
Applications for Permission
The first step the applicant must take is to apply for permission, and it is provided that the court shall not grant permission unless it considers that there is substantial ground for the making of an application for such an order. Clearly, the court would first have to be satisfied that it had jurisdictions, as explained above.
'The court will then have to consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate the court shall dismiss the application'.
There follows a list of the matters to which the court must have particular regard which include:
1. the connection which the parties have with England and Wales, the country where the divorce etc was granted, or any other country;
2. the financial benefit which the applicant or a child has or is likely to have received in the foreign proceedings;
3. the financial relief awarded by any foreign court and the likelihood of any such order being complied with.
4. the right to apply in any other jurisdiction
5. availability of property in this country
6. length of time since divorce.
The application must be made in the principal registry. The application must be heard by a district judge of the principal registry. The court has to be satisfied as to the substantial ground for the making of the application and if on the application for permission it is clear that if permission should not be granted.
The court has power to make all the types of order it could make if the divorce etc had been granted in England and Wales, including avoidance of disposition.
Please call us if you have an Overseas Divorce law issue. We have lawyers who are also working all over India and Europe who can assist from their jurisdiction.
Source: Ancillary Relief and Financial Orders Handbook:
Author: Andy King