Many separating couples with assets in England conduct their divorce proceedings abroad. There are many potential scenarios: for example, it may be that the couple used to live in England and still have assets such as a pension or property here; that one of them moved to England following the separation bringing assets with them; that they have never lived here but own a holiday home in England; or that they live here but divorced in a country of which they are both nationals. Whatever the circumstances, similar questions will arise about the implications of any foreign financial order made on divorce on English assets. We outline the type of issues which can arise.
We have an order from a foreign court regarding our financial settlement on divorce. Could the English court make another order dealing with our English assets?
In most cases the answer to this is no – if a foreign court has determined the appropriate financial settlement, taking the couples’ worldwide assets into account, the English court will respect that and not give one spouse a “second bite of the cherry”. However, in some cases, an application may be made for further provision from the English court under Part III of the Matrimonial and Family Proceedings Act 1984. The party making the application will need to show a sufficient connection to England, and will then need to satisfy the court that it is appropriate, in all the circumstances, for the court to make an order. An order is most likely to be made where the parties have a longstanding and close connection with England, and the foreign order does not provide for the reasonable needs of the person making the application, or for those of the parties’ child.
Can I register a financial order made abroad in England?
This will depend on where the order was made, and what kind of provision it makes. An international convention (the 2007 Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance) provides for mutual recognition of some financial orders made on divorce. A list of states that have signed up to the convention is available here, and includes all EU states other than Denmark, as well as Canada, the US, New Zealand and a number of others. The convention applies to orders making provision for a spouse or child in order to meet their (capital and/or income) needs, but not to orders based on an entitlement to share in assets on divorce. Further, it must be shown that certain links existed between the couple and the state where the order was made, and registration can be refused in limited circumstances, e.g. if there are conflicting orders, or if one party was not involved in the proceedings. Once the order is registered, the other party will be notified and can appeal the registration.
What if I need to enforce a foreign financial order in England?
Enforcement will be more straightforward where the order is one which can be registered under the 2007 Hague Convention discussed above. In those cases, the first step is to register the order, and an enforcement application can then be made within the framework of the convention. In other cases enforcement is likely to be more complex, and the best approach will depend on the type of order made and the nature of the English assets. If, before a foreign order is made, you anticipate that you may want to enforce it in England, it is worth speaking to an English lawyer during the foreign proceedings for advice on what provisions could be included in the foreign order to facilitate enforcement here.
If a financial order was made abroad, can I apply to vary its terms in England?
Ongoing maintenance payments, whether for the benefit of an adult or a child, are generally variable, but complex rules govern in which country it is possible to apply for a variation. Under the 2007 Hague Convention, the general principle is that where the initial decision was made in the state where the payer lives, it is not possible to apply to vary that decision in a different state whilst the payer remains living in the state where the decision was made. However, there are exceptions to this.
International divorce cases can be particularly complex, and it is important to plan ahead from the very start of the case, not only to consider in which country divorce proceedings should take place, but also to understand whether, if enforcement may be required in another state, there are any steps which can be taken in the main proceedings to facilitate this.
If you have any questions on anything in this blog, please contact Amy Scollan on 0207 412 0050 or Amy.Scollan@hunterslaw.com.