Yes, it’s possible to get a financial order in the UK after a foreign divorce. But the process tends to be complex and uncertain. Whether or not you’ll succeed in your application depends on several factors, including:

  • The laws of the country where the divorce was granted
  • Your connection to England and Wales
  • The assets involved
  • Any agreements or orders already in place

Here we look at the relevant procedure under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA) which enables someone to seek a UK financial order even if the divorce has been finalised abroad. We also consider the 2024 Supreme Court’s decision in the long-running case of Potanina v Potanin. The ruling suggests that it might well be more difficult to successfully pursue applications under Part III in future.

Why Do People Apply For A UK Financial Order?

Forum shopping is where those seeking the most advantageous financial settlement issue proceedings in the jurisdiction they believe will look most favourably on their situation. The courts in England and Wales are seen around the word as being more generous towards financially weaker spouses when it comes financial settlements. In most cases a UK judge only makes a financial order when the divorce takes place in England and Wales. However, in some cases it is possible to ask the English courts to change a foreign financial order. Financially weaker spouses have an incentive therefore to seek a UK judge’s review of an overseas financial ruling if they are dissatisfied with it.

Making An Application Under Part III

Anyone wishing to apply under Part III for a financial remedy in England and Wales where there has been a foreign divorce must first seek the leave (permission) of the court to do so. Courts will grant permission for the application to proceed to a full hearing if the applicant has a substantial or  solid basis for doing so. The courts will only be able to entertain an application under Part III if:

  • At least one spouse was domiciled in England and Wales at the date of the foreign divorce or on the date of asking for permission to make a Part III application; or
  • Either of the parties to the marriage was habitually resident in England and Wales for a year before the application; or
  • Either party owned a residential property in England and Wales for one year before the application for permission to make a Part III application.

A key characteristic of the application to seek permission for a Part III hearing is that it is made ex parte. That’s to say the applicant does not need to notify the other spouse. If leave is granted, it is only then that the respondent spouse becomes aware that the other spouse is seeking a UK financial remedy order.

At this point it is open to the respondent spouse to ask the court to revoke or ‘set aside’ the permission the other spouse has obtained to make a formal Part III application. Until the Supreme Court decision in Potanina v Potanin in 2024 it was believed that the hurdle to set aside the permission was an extremely high one to overcome. The respondent needed to produce a ‘knockout blow’ to the other spouse’s case to get the permission set aside. The Potanin decision appears to lower that bar.

Supreme Court Decision In Potanin v Potanina 2024

The Potanin case involves the divorce of a Russian billionaire.  It made its way through the courts for a number of years before the Supreme Court was asked by the husband to revoke the wife’s permission to make a Part III application. In a significant ruling the court said that:

‘Rule one for any judge dealing with a case is that, before you make an order requested by one party, you must give the other party a chance to object’.

The court was clear that the practice of forcing respondent spouses in these cases to provide a compelling or ‘knockout blow’ was contrary to this important ‘Rule one’ principle. As we have seen permission is granted in Part III applications without the court hearing any arguments from the respondent (usually the financially stronger spouse).

Comment

The Supreme Court’s decision in Potanin suggests that the practice of insisting on the benchmark of a ‘knockout blow’ had grown up out of a series of misunderstandings. This had, the court felt, resulted in a procedure that was fundamentally unfair. In fact the correct approach in applications to set aside permission should be to require the spouse wishing to benefit from a Part III application to again show – this time in front of his or her spouse – why they should have permission to proceed to a full Part III hearing.

In practice we think this could send a signal that the UK courts will be less likely to entertain any application to relitigate a foreign financial order.

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