Agbaje financial provision after a foreign divorce: The Supreme Court restores opportunity for international justice
David Hodson’s article analyses the implications of the recent Supreme Court judgment in Agbaje for cases where a party is seeking financial provision in this jurisdiction in circumstances where a divorce may have been previously pronounced abroad but the applicant feels that no, or no adequate, financial provision had been made by a foreign court.
The Supreme Court has just handed down its delayed judgment in Agjabe  UKSC 13, and greatly clarified the law in a discrete area of practice which is of increasing importance for the very many international families now in England. It is the first time since 1984 that this area of law has reached England's highest court and it is the leading decision on the subject. The judgment analyses previous case law and goes back to the original purposes of the relevant legislation, Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984).
This article looks at the Supreme Court decision in the context of the background and history of this area of law, summarising recent cases and offering an explanation of the practical application for international families. More details regarding Part III remedies are set out in Chapter 10 of "A Practical Guide to International Family Law" by David Hodson, (Jordans 2008).
The Supreme Court has restored the previous understanding of the opportunity for the English family courts to grant divorce financial provision even though a divorce may have been previously pronounced abroad. They have confirmed that the purpose of the legislation is to alleviate the adverse consequences of no, or no adequate, financial provision being made on divorce by a foreign court in a situation where the parties had substantial connections with England.
In considering the appropriate financial provision, primary consideration naturally has to be given to the welfare of any child. It would never be appropriate to order more than would have been awarded had the proceedings taken place entirely in England and where possible the financial outcome should provide for the reasonable needs of each spouse. Where the connection with England is strong, it may be appropriate for there to be such provision as would have been made had the divorce been in England. Where the connection is not so strong and there has already been adequate provision, it will not be appropriate for Part III to be used as a simple "top up".
Despite dramatic improvements in the past 25 years in divorce financial outcomes in many countries, there are still some appalling injustices in some countries abroad. This legislation remains as vital for these individuals as it did in 1984. Although the Court of Appeal decision had dramatically narrowed its application, the Supreme Court has very rightly restored this Parliamentary opportunity for discretionary judicial justice. Nevertheless international sensitivity is needed and it is not for England to act as a court of appeal of other countries with similar approaches to England.
A Brief history of Part III MFPA 1984
In the 1970s and early 1980s, as the amount of international travel increased, the English family courts were placed in a difficult situation. If they recognised a foreign divorce, as was public policy to do so as much as possible, they effectively closed the door altogether on any further opportunity for the English courts to grant financial provision to deserving spouses. Three decades ago, the financial provision for women on divorce in a good number of countries was appalling and much worse than the position today. Hence there was substantial forum shopping and much litigation attempting to establish that certain foreign divorces, for example Islamic divorces, should not be recognised as valid divorces. Much case law on the recognition of foreign divorces derives from this period. If the divorce abroad was recognised, it was the end of any opportunity for the English courts to grant financial provision on the end of the marriage. This was frequently unpleasant, costly, often unjust and rarely produced an overall fair outcome.
Part III Matrimonial and Family Proceedings Act 1984 was introduced to overcome this problem. It followed Law Commission recommendations. In essence Part III MFPA provides that if there is jurisdiction for divorce in England and Wales (although still curiously the pre-Brussels II jurisdiction!) or an interest in the matrimonial home here and there has been a foreign divorce, then the English courts have discretion to grant financial provision. The legislation sets out the circumstances in which the discretion might be exercised. The applicant has to:
1. have taken a good part of the foreign proceedings,
2. used local remedies and
3. done her best to seek reasonable financial provision where the divorce had taken place.
The court could then make in effect the same orders as if the divorce had taken place here. There is a two-stage process where the application is made initially without notice, then resulting in a final hearing.
Initially, after the legislation was passed, there were a number of successful cases over the next decade. However the international family law globe was changing. Lawyers were frequently travelling to other jurisdictions and sharing developments in family law. Rights for women on divorce increased in many places. There was much greater international family law comity including between judges.
The English family courts grew nervous and felt awkward about exercising this jurisdiction, in effect acting as a Court of Appeal upon the decisions of courts in other jurisdictions. It became an unattractive feature in applications before the English courts from divorces of other Western jurisdictions. So in Holmes  2 FLR 364 Lord Justice Russell said that prima facie the order of the foreign court should prevail save in exceptional circumstances.
For the next 15 years or so, it was a rather underused jurisdiction. Certainly it was useful where the divorce had been in a country in which, to all intents and purposes, one party, invariably the wife, had negligible rights and entitlements on divorce. However even then, English family courts trod warily.
However, in the past eight years or so, the English courts have started again to use this legislation more frequently and more assertively, with Third World jurisdictions, westernised jurisdictions and now even within Europe in narrow circumstances. From being a most underused remedy, it is again an opportunity for fairness and justice for some international families. However, after the remedy had been very fairly used in the High Court in Agbaje, the Court of Appeal, primarily Lord Justice Ward, dramatically reduced its availability and application, leading not only to very considerable unfairness for the wife in the particular case but also for many women facing discriminatory financial outcomes in countries abroad.
The matter quite rightly came up to the five judge Supreme Court which heard the matter in early November and gave a unanimous decision in the name of Lord Collins.
An Overview of Recent Part III case law
From the introduction of the legislation, there was little doubt that the English courts would grant leave if the applicant had had no real opportunity to pursue financial claims on foreign divorce. But what of "western" and former Commonwealth jurisdictions?
In Holmes v. Holmes  3 AER 786, it was said that Part III was intended to "fill the gap" of those foreign divorce jurisdictions which did not grant fair or "appropriate financial provision". Specifically, it was not intended that English Courts should review or correct orders of foreign courts which had assessed circumstances, investigated and made enforceable Orders. Per Russell LJ at p795: "Prima facie, the order of the foreign court should prevail save in exceptional circumstances and a good case for any interference with it or adjustment or any supplementation of it should be apparent before leave is given". In this case the New York family court had thoroughly investigated the matter and, after disclosure and representation, made final financial orders. The Part III application was dismissed.
In Z v. Z (Financial Provision: Overseas Divorce)  2 FLR 291, the applicant wife was already worth about £850,000 plus allegedly undisclosed assets whereas the husband disclosed assets of approximately £2ml. Therefore, no substantial grounds were shown to pursue the wife's claim here. This was notwithstanding the divorce was in Bahrain. Previous perceived wisdom had been that Part III would be applied to such countries. It was accepted by the court that the wife had virtually no rights in Bahrain because of the deferred dowry of £14,000. Many commentators felt this case broke the back of the Part III remedy. Thenceforth it would be more difficult to obtain.
In Hewitson (1995) 1 FLR 241 the Court of Appeal said Part III was for the situation where no or no sufficient relief was awarded abroad. The mischief that the Act was designed to redress was a narrow one and did not include the case of a foreign court of competent jurisdiction making an order which had been neither appealed nor impugned. On the facts of this particular case, subsequent cohabitation after a Californian final order did not give the entitlement to leave.
The then President, Lady Justice Butler-Sloss, followed up her judgment in Hewitson by saying in Lamagni  2 FLR 452 that the major cases since the MFPA 1984 had seen wives who had obtained orders from foreign courts but who subsequently felt that they were inadequate coming to the English courts for more generous orders. Butler-Sloss LJ felt that such applications had been "very properly dismissed" on grounds that there should not be two bites at one cherry and a litigant had no right to go forum shopping.
After many Part III applications were being refused in the 1990s and the early part of the 2000s, the tide started, perhaps, to turn. Part III leave was given more frequently
In A v S (Financial Provision after Overseas US Divorce and Financial Proceedings)  1 FLR 431, an elderly and wealthy Texan husband married a much younger Polish woman after a whirlwind romance. Prior to the marriage he bought a house in London, which was intended to be joint but which was placed in his sole name because at the time of purchase his wife to be was going through a divorce from a previous marriage. The wealthy Texan's marriage broke down very quickly (less than three months) and the Texan court made no additional marital provision for the wife. The High Court analysed the judgment of the Texan court and found that it had not dealt with the interest the wife had acquired in the London house by operation of proprietary estoppel. This interest was based on a promise or statement of intent by the husband on which the wife had relied upon entering into the marriage and so the High Court granted the wife an order for some financial provision. The High Court said it respected international comity but that this case belonged to a small residuum of cases where the English court felt a foreign order was not just. Nevertheless, it went on to say that only minimum financial relief would be granted to remedy the injustice. The wife's repeated lying to both the US and the English courts was litigation misconduct and would be reflected in costs. The wife was awarded £60,000 subject to costs orders. The husband was worth $1.7 million.
Given the comments in Holmes, above, and the extensive judicial consideration of marital financial claims and regimes in Texas before a judge and jury, this was a very surprising outcome. Although not apparent at the time, it was perhaps the amber light to the English courts starting once again to make Part III orders after divorce financial outcomes in other westernised jurisdictions.
In M v L (Financial Relief After Overseas Divorce)  EWHC 328 (Fam) after more than 30 years from the parties' separation and divorce in South Africa with the wife looking after two children, the English court allowed Part III leave despite the lapse of time in recognition of the wife's contribution as mother. The wife had a financial need arising from that contribution. She had remained financially dependent on the husband.
About six years after separation the husband had granted the wife a tenancy of a London property for her and the children. The court gave her a half interest in the property and a lump sum capitalisation. It was held that this was always an English, and not a South African, case. Whilst South Africa is now recognised as a westernised jurisdiction, the financial provision for wives in 1970, the time of the original South African divorce, was not good. The wife had no opportunity to seek greater provision in South Africa. It was a fair outcome given her continuing involvement in looking after the children, the husband's ongoing support and the wife's dependency.
In Ella  2 FLR 35, the court allowed a stay of the English proceedings and for the divorce to go ahead in Israel on the strength of a jurisdiction clause in a pre-marriage agreement. However, in doing so, the court remarked that if Israel held the wife to the pre-marriage agreement, which, it was accepted, only gave unreasonable and unfair provision for her compared with the entitlement she would have had in accordance with English law, then her prospects for leave under Part III were "good". This seemed curious. Why order a transfer of proceedings to another country expected to grant "unfair" provision under the terms of a parsimonious pre-marriage agreement and then, in effect, invite one party to apply subsequently in England for proper financial provision?
In Moore  EWCA 361,  2 FLR 339, after the English couple and their children moved briefly to Spain for the husband's fiscal benefit and the marriage broke down, the wife and children returned to England. Subsequently there was a Spanish divorce and long and complicated proceedings in Spain regarding claims for financial provision with conflicting orders and subsequent appeals in the Spanish courts.
Eventually the wife applied for Part III leave which she obtained initially without notice, despite the trial judge's provisional conclusion that the wife was a blatant forum shopper! First, the court found the family's connection with England and Wales was overwhelming. The spouses were both English, they had spent most of their married life here and were only in Spain together for a matter of months and the bulk of the marital wealth was in England. Secondly, neither party had initially tried to litigate the financial issues in Spain but in any event, the fact that a party might have claimed relief in the foreign proceedings, though significant, is not to be treated as determinative. Thirdly, and said by the Court of Appeal to be the most striking feature, it was common ground that the Spanish court would apply the law of the parties' nationality. In other words, it would apply English law under the MCA 1973 and the principles of White and Miller.
On this third and fundamental aspect, the first instance judge had said that he would regard it as inadmissible for the English court to take this factor into account in determining which was the proper jurisdiction. He said that the superficially attractive argument, namely as it is English law that was to be applied so the English court and English procedure would best suited to resolve the dispute, was, in his opinion, to be ignored. Crucially, the Court of Appeal disagreed. The close connection of this family with England went even further than residency, location of assets and similar. The connection was such that even the Spanish courts would treat English law as the governing law. So in the particular circumstances of the case, the parties nationality and their consequential connection with English law, as the law governing the dispute, were highly relevant factors (para 115).
There must be placed a very considerable caution here before it is suggested that every case abroad applying English law should be transferred to England or appropriate for the application of Part III. Moore was in the context where the Spanish court was decidedly not dealing with matters of "maintenance" as interpreted by Brussels I and other European legislation. From Moore, it seems likely that the English court would still be reluctant, and possibly jurisprudentially unable within Europe, to deal with financial provision after an overseas divorce if the foreign financial provision relates to maintenance. However, the Moore case seemed clearly to indicate that if it does not relate to maintenance, even generously interpreted, then the gateway was now more open for Part III applications.
Agbaje v Akinnoye-Agbaje: the background
It is in this context of the modestly expanding jurisprudence of Part III that the Court of Appeal decision in Agjabe seemed very surprising. Yet the first instance High Court decision of Coleridge J fitted within the direction of the previous case law summarised above.
The parties were married for 38 years, both Nigerian by birth although they had met in England in the 1960s and acquired UK citizenship in 1972. All five children were born in England and all but one educated in England. In 1975 the husband bought a property in London in which the children stayed with their nanny. For the majority of their married life, the couple lived in Nigeria. They separated in 1999 at which point the wife came to live in the London home where she has lived ever since. In 2003 the husband issued divorce proceedings in the Nigerian courts in which the wife sought ancillary relief. It was recorded that she played a full part in the Nigerian proceedings. The Nigerian court gave her a life interest in a property in Lagos with a capital value of about £86,000 and a lump sum equivalent to £21,000. The total assets were approximately £700,000, of which £530,000 was represented by two properties in London. Compared with any award that an English court would have made, the Nigerian court order was thoroughly unfair given that there had been a long marriage and in circumstances where the wife had played her part as a mother and wife. The order made by the Nigerian court gave the wife no accommodation in England and the wife would face homelessness. The Nigerian settlement had not accounted for the couple's English properties.
The wife applied under Part III and the High Court ordered that she receive 65% of the proceeds of sale of the London property to enable her to house and maintain herself in London, being about 39% of the overall assets, a relatively significant departure from equality. Nevertheless, it provided reasonably for her needs. The High Court was anxious that the wife was simply seeking a second bite of the cherry and asked what exceptional circumstances existed (see Holmes above) to allow such an application to proceed when the proceedings in the other country were conducted appropriately and had led to a financial order in the wife's favour which had been implemented. The High Court judge found that this was an exceptional case. He clearly had in mind that the award for the wife was much lower than it might have been in this country. Yet the wife had not appealed the Nigerian order.
The husband appealed to the Court of Appeal ( EWCA 1) which refused the wife any relief whatsoever. The Court of Appeal relied on the fact that the High Court judge had given insufficient weight to the strong connections of the family with Nigeria in finding that the circumstances were "sufficiently exceptional" to warrant the application. They concluded that it would not be appropriate to grant the wife even another nibble at the cherry. On any basis, this was surely a harsh outcome for the wife. She appealed to the Supreme Court.
Agbaje v Akinnoye-Agbaje: the Supreme Court decision
There are several elements within the judgment:
1. the proper approach to the Part III remedy
2. the improper approaches to this remedy
3. the general principles of the provision
4. the method for quantification (as if on divorce or a mere top up?)
5. the situation in EU "maintenance" cases
6. procedural issues:the two-stage filter mechanism
Paragraph numbers relate to the judgment itself and the words reproduced in italics are direct quotes from the judgment.
1. Agbaje v Akinnoye-Agbaje: the proper approach to this remedy
The Supreme Court went back [paragraph 7] to the original Law Commission recommendations in 1980. The Supreme Court said that the purpose of Part III was 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 [para 71].
There were two, interrelated, duties of the court before making an order under Part III. The first was to consider whether England and Wales was the appropriate venue according to section 16(1). The second was to consider whether an order should be made in regard to the matters in section 18. These duties are interrelated. This is set out at paragraphs 41-44 and 71 which should be read when conducting these applications
2. Agbaje v Akinnoye-Agbaje: the improper approaches to this remedy
Having stated the original purpose and approach of the legislation and it being the first Supreme Court decision since the introduction of the legislation notwithstanding some 25 years of case law, the Supreme Court took the opportunity to review particular past judicial approaches and gave guidance, including the clarification of what constituted improper approaches to these cases.
The Supreme Court concluded that the remedy is not only available in cases where the outcome of the divorce abroad is "hardship". The Supreme Court said that there had been a tendency in previous decisions for hardship to be regarded as a condition for the exercise of this remedy. This is wrong. It is certainly an important factor to take into account. However, it is not a condition [paras 58-60].
In a similar fashion, it was not only "exceptional circumstances" in which the remedy would be allowed [para 59]. This criterion had been prevalent since Holmes (1989 above) and had been used at first instance in Agbaje.
Moreover, it was not only to be used in cases of "serious injustice". This had been referred to in the Law Commission Working Paper but it had not been incorporated into the legislation. Furthermore, and supporting Thorpe LJ in Jordan  2 FLR 1069, "injustice" was not a necessary precondition although again it would be a relevant factor to take into account under ss 16 and 18.
Moreover, it was not appropriate for the English court to intervene to the "minimum extent" necessary to remedy the injustice perceived arising from the foreign order. The Supreme Court criticised this approach in A v S (2003 above) saying that it was contrary to principle [paras 63-64].
The appropriate test in deciding whether to allow this remedy is not forum non conveniens [paras 45-50]. This is the perfectly proper and appropriate criterion for a stay of proceedings if there are family proceedings occurring in another non-EU jurisdiction. However, the Supreme Court said this is not the case for the Pt III test, criticising the approach taken in the Court of Appeal. Part III is not the choice between two jurisdictions; it is invoked when one jurisdiction has already decided the divorce. Although the factors in s16(2) and in the case law on forum non conveniens may be similar, they are directed towards different end results. The Supreme Court therefore said that little assistance can be gained from the stay cases and the Hemain anti-suit cases in the Part III exercise. The task for the judge under Part III is to determine whether it would be appropriate for an order to be made taking account of the factors in section 16(2) notwithstanding that the divorce proceedings were in a foreign country which may well have been the appropriate forum for the divorce [para 50].
It is not the intention to allow a simple "top up" i.e. always to equate with what would have happened if the divorce had been in England [paras 65-70]. Contrasting that with the equivalent legislation in Scotland which gives a specific requirement to produce an outcome as if the divorce has occurred in Scotland, the Supreme Court noted that this was not the English solution set out in the 1984 legislation. Instead a more flexible approach was deliberately adopted [para 70]. The Supreme Court gave guidance, referring to the strength of connection with England as leading to the sort of provision which would be made, as referred to below.
3. The general principles of the provision
The Supreme Court said that the following principles should be applied [para 73]. First, primary consideration must be given to the welfare of any children of the marriage. This can cut both ways as the children may be being supported by the foreign spouse. Second, it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all proceedings taken place within this jurisdiction. Third, where possible the order should have the result that provision is made for the reasonable needs of each spouse. Subject to these principles, the court has a broad discretion.
The first and second are obvious and self-explanatory. The third is hugely helpful. Despite the sharing principle from White through Miller and into Charman, England is still predominantly a needs-based jurisdiction for two reasons. First, in practical terms, very many cases do not have sufficient assets to engage sharing and instead needs, being needs generously assessed where appropriate, are fundamental including for the welfare of any children. Secondly, and in more jurisprudential terms, the concept of marriage in England still retains the essence of reciprocally looking after each spouse including taking account of commitments, sacrifices and prejudices made in the past to the marriage and in the future including for example ongoing childcare.
Yet very many countries, including a good number within Europe, would find such a needs-based element quite alien, certainly in the expectation of the needs provision found daily in the English family courts.
In coming back to reasonable needs as one of the fundamental principles of this discretionary provision for international families, the Supreme Court has made a fundamental and, it is submitted, a tremendously important statement of its importance for marriage and marital commitments, past, present and sometimes ongoing.
At a time when the European Union seems obsessed with a one track law reform policy of imposing applicable law on the United Kingdom, it is a great pity that they cannot observe this statement by the Supreme Court. There are very many international families across Europe where upon divorce following a long marriage, often after great commitment by the wife to the marriage including child raising, she finds that in the foreign divorce proceedings she has to leave the family home and is given very inadequate provision in which to house herself and the children for their minority, often at a much lower standard than that of the marriage and that of the husband. The equitable provision for needs in many European Union countries is inadequate. The situation on divorce outside the European Union is often even worse. This statement from the Supreme Court is of colossal significance internationally.
4. The method for quantification (as if on divorce or a mere top up?)
Having stated the general principles, the Supreme Court gave guidance on quantification. It stressed that there was a flexible approach and a broad discretion. The reasons why it was appropriate for an order to be made were among the circumstances to be taken into account in deciding what that order should be. The full sharing, needs and compensation themes of fairness would be applied.
Where the English connections of the case are very strong, there may be no reason why the application should not be treated as if it were made in purely English proceedings [para 73]. In other words it is akin to the Scottish legislation. The outcome would be as if the divorce had taken place in England.
The Supreme Court said there will be other cases where the connection is not strong and a spouse has received adequate provision from the foreign court [when] it will not be appropriate for Part III to be used simply as a tool to top up that provision to that which he would have received in an English divorce [para 70].
The reference to needs [para 73], one of the three general principles as set out above, and the reference to the strength of the connection with England means that the Supreme Court contemplates that there could be cases where the connection is not strong (but sufficient for Part III) whereupon the court will make only a needs-based order rather than what might otherwise be a full sharing-type order on divorce if the connection was very strong. The Supreme Court emphasised the flexibility of the approach. It was at pains to emphasise that this is not simply a second bite at the cherry. It referred many times back to the legislative criteria of no, or no adequate, provision from the foreign divorce settlement. In referring to the strength of the connection with England invoking the full divorce outcome, such as sharing, there must therefore be the category of cases where the connection is not so strong but equally the provision abroad has not been adequate. In these circumstances it is suggested that the needs principle is more likely to be invoked as the criterion for the outcome. For these applicants, faced otherwise with inadequate provision from the foreign divorce order, even a needs outcome will be an oasis of justice in their particular desert.
5. The EU "maintenance" cases
Brussels I and the Lugano Convention provide for the European cross-border recognition and enforcement of "maintenance" orders. Brussels I is itself soon being replaced by the Brussels Maintenance Regulation (see the Author's article Maintenance within the EU: The New Regulation). In this context maintenance has often been interpreted and characterised as needs so, for example, property adjustment or lump sum orders might be sharing or might be "needs": Van den Boogaard v Laumen  2 FLR 399. This was explicitly and helpfully examined by the Court of Appeal in Moore (2007 above). In that case the English court found that the Spanish court had not made an order under the maintenance element and therefore the court felt free to make an English Part III order under the full sharing and needs principles. There has been a general perception that as a consequence, it is not possible to seek a Part III order for a maintenance, needs-based outcome when there was already a EU maintenance divorce settlement. This is notwithstanding that this is in fact where most often remedies are sought from the English court because needs, as understood under English law, have not been adequately provided for by the order made in the other European country. This is a real issue on which judicial assistance has been urgently needed.
Perhaps it was predictable that the Supreme Court should simply say that this is an area which involves difficult decisions which do not arise for decision on this appeal! [para 57].
Nevertheless, and pending the point being taken to appeal, there are several countries around Europe, principally but not only in Eastern Europe, where needs are simply not provided for in any conventional manner other than at the very most basic level.
This can result in accommodation for a wife with young children on divorce which is grossly different from that enjoyed during the marriage and which the husband is still enjoying. This can result in cases where no spousal maintenance is ordered, in circumstances where, after a very long marriage where it had been agreed that the wife would not work and yet in her 50s, she is barely able to receive any employment income and is dependent upon welfare benefits even though the husband continues to enjoy high earnings. These and other real "needs" injustices are often found across Europe. There may be greater certainty about outcome in those countries and the assets acquired during the marriage itself may be divided equally. However, this does not provide adequate provision for needs. The European Union will not intervene.
With this broader statement of principles from the Supreme Court, will the time come soon when the English court will permit a Part III case after divorce within Europe which has purported to provide for needs, maintenance, yet has clearly inadequately failed to do so?
6. Procedural Issues: the two-stage filter mechanism
One of the procedural difficulties with Part III cases has been the two-stage commencement of the application. The first stage is an application without notice for leave, s.13 and R3.17 FPR. Once leave is given, the application proceeds. However, on a number of occasions the Respondent has appealed the granting of leave which has thereby involved substantial costs, delays and litigation even before the actual consideration of what, if any, appropriate financial provision should be ordered. This two-stage approach has been criticised frequently by the High Court, the Court of Appeal and by academics and practitioners including Dr. Stephen Cretney, Nicholas Mostyn QC and David Burrows. It was also criticised at first instance in this case.
The Supreme Court reviewed this filter mechanism which had been recommended by the Law Commission to ensure only cases with "substantial grounds" went forward. The Supreme Court said that it was clear that something must be done to prevent a waste of costs and court time, and prejudice to the applicant, caused by applications to set aside which have only questionable chances of success [para 32]. They went on to say [para 33] that the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a partner. The threshold is not high but higher than "serious issue to be tried" or "good arguable case". They thought that reference to substantial grounds meant solid grounds. Once a judge had given reasons for deciding at the without notice stage that the threshold had been crossed, the approach to setting aside that leave should be the same as the approach to setting aside permission to appeal in the Civil Procedure Rules where (by contrast to the FPR) there is an express power to set aside but may only be exercised where there is a compelling reason to do so. In practice in the Court of Appeal the power is only exercised where some decisive authority has been overlooked so that the appeal is bound to fail ... or where the court has been misled.
The Supreme Court said that in an application under section 13, unless it is clear that the respondent can deliver a knockout blow, the court should use its case management powers to adjourn an application to set aside to be heard with the substantive application.
Practitioners and parties will be pleased at this considerable assistance given by the Supreme Court on this hitherto troublesome procedural aspect.
It is suggested that the following are appropriate circumstances for consideration of the use of Part III where the applicant has received no, or no adequate, financial provision in the divorce abroad, presuming the jurisdictional and s13 criteria are met:
- the applicant has clearly not had their needs provided for in the divorce abroad; although where the connection with England is not strong, this will not be simply a top up provision
- there is a very strong connection with England and the divorce outcome abroad is materially different
- the law of the country where the divorce occurred does not allow orders to be made in respect of offshore property and therefore Part III could be used for this purpose. This lack of powers to make orders in respect of foreign property is surprisingly prevalent across a number of EU and other countries, leaving a black hole in the opportunity for their divorce courts to do justice in respect of all assets. There seems no good reason why Part III should not be used in respect of English assets in those circumstances
- there is a very difficult, contentious and expensive dispute regarding recognition of a foreign divorce and the parties agree instead that the divorce financial provision will be dealt with in England under Part III
- to obtain a pension sharing order in respect of an English pension in circumstances where other issues are dealt with in the foreign divorce and a foreign divorce pension sharing order will have no efficacy or validity for the English pension company
Part III MFPA 1984 was desperately needed in the 1980s to produce fairness for the then increasing number of international families and international divorces. For many spouses having any connection with England and Wales but finding themselves divorced abroad, it was an invaluable remedy. The English judges dealt sensitively and mostly appropriately with this incredibly powerful and globally far reaching jurisdiction. But international comity and closer international judicial relationships caused unease. English judges were sitting in judgment on equally competent foreign family court judges. The remedy almost fell into disuse, especially where other westernised countries were involved.
Strangely, with now incredibly close judicial co-operation internationally and with undoubtedly significantly increased rights for wives on divorce in many jurisdictions, English courts have once again started making financial provision orders after perfectly regular and internally fair divorce procedures and hearings in other countries. This has included not only what some would regard as Third World countries but now America and Europe. This is dangerous territory. English lawyers and judges would not enjoy the family courts of other countries taking it upon themselves to "improve" the financial outcomes of cases decided in this country.
Nevertheless this discretionary power is available and should be used by lawyers for their clients after an overseas divorce if it is believed that grounds can be shown for leave to be given and a much better financial outcome achieved here. It involves curious court procedures and actions and the proceedings are always before a High Court judge. The outcome of a successful application can be very beneficial.
Moreover, it must be constantly remembered that there are still very many spouses who suffer badly as a consequence of family law proceedings in many countries, especially where there are difficulties of language, inability to fund representation, favouritism towards nationals and/or men and lack of powers to secure disclosure and/or enforcement. For these parties, Part III remains a vital remedy to secure fairness of outcome on marital breakdown for international families.
The Supreme Court has to be thoroughly applauded on a landmark judgment creating opportunities for justice for international families.
(c) March 2010
David Hodson is an English solicitor, mediator, arbitrator and a part-time family court judge in London (DDJ at PRFD), an Australian solicitor, barrister and mediator and a consultant at The International Family Law Group, London (www.iflg.uk.com)