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Clean Breaks, Foreign Decrees & the MFPA

Byron James examines the use of the Matrimonial and Family Proceedings Act 1984 in achieving clean breaks on the basis of a foreign decree.

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Byron James, Pupil, 29 Bedford Row

Much has been written on the subject of an application for leave under Part III of the Matrimonial and Family Proceedings Act 1984 ("MFPA 1984"), especially since the decision of Moore v Moore [2007] EWCA Civ 361; [2007] 2 FCR 353. These applications are concerned with seeking ancillary relief on the basis of an overseas divorce, judicial separation or otherwise.

The Court must have regard to two sections in particular when determining leave. Section 13 of the 1984 Act provides as follows:

'Leave of the court required for applications for financial relief

(1) No application for an order for financial relief shall be made under this Part of this Act unless the leave of the court has been obtained in accordance with rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order.

(2) The court may grant leave under this section notwithstanding that an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property to the applicant or a child of the family.

(3) Leave under this section may be granted subject to such conditions as the court thinks fit.'

Section 16 is in the following terms:

'Duty of the court to consider whether England and Wales is appropriate venue for application

(1) Before making an order for financial relief the court shall 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.

(2) The court shall in particular have regard to the following matters--(a) the connection which the parties to the marriage have with England and Wales; (b) the connection which those parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated; (c) the connection which those parties have with any other country outside England and Wales; (d) any financial benefit which the applicant or a child of the family has received or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a country outside England and Wales; (e) in a case where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with; (f) any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and if the applicant has omitted to exercise that right the reason for that omission; (g) the availability in England and Wales of any property in respect of which an order under this Part of this Act in favour of the applicant could be made; (h) the extent to which any order made under this Part of this Act is likely to be enforceable; (i) the length of time which has elapsed since the date of the divorce, annulment or legal separation.

One question that has not been the subject of much discussion is whether the MFPA 1984 can be used as a shield, rather than a sword.

This question is likely to be relevant to parties who are involved in more than one jurisdiction and wish to dismiss the other's claims for ancillary relief. Imagine the following circumstance: despite both being English nationals, W lives in Ireland, H lives in the UK. W, on the strength of an Irish judicial separation, succeeds in being granted an ancillary relief order in Ireland that deals specifically (and solely) with the FMH. She is unable to get a divorce proper without 4 years permanent separation, as per Irish law. None of the parties' claims are dismissed, the order was silent as to income and pension provision. Let us assume that it is W whom is the wealthy party and she has no desire to purse H for anything further. The problem that W is then faced with is that H is able to apply for ancillary relief orders against her via three routes. Firstly, he can apply under the MFPA 1984, on the basis of the foreign judicial separation (s12). Secondly, he can initiate divorce proceedings in this jurisdiction and apply for ancillary relief under the Matrimonial Causes Act 1973 ("MCA 1973"). Thirdly, he can apply back to the Irish court for a further order.

Is it therefore possible for W to apply to the England and Wales court under the MFPA 1984 to have H's claims dismissed?

W has open to her the same three routes as are available to H. An application under the MCA 1973 is likely to prove unduly costly; not only would she need to initiate divorce proceedings but she could also be opening the door for contested ancillary relief proceedings, enlivening H to possibility of a claim against her. The only way to obviate the normal ancillary relief timetable is by consent; otherwise, the Court will simply swing into the normal hearings, with the requisite full and frank disclosure. It is a disproportionate cost, one might think, for a dismissal. The Irish court may also make further orders, but this would not prevent H applying in this jurisdiction for both divorce and ancillary relief. Of course, the England and Wales Court will consider any order made in a foreign jurisdiction as part of "all the circumstances of the case", but it will not necessarily be determinative. This leaves the MFPA 1984, which would appear to provide W with a more expeditious route to a final order. There would, for instance, be no need for divorce proceedings in this jurisdiction. The writer also believes that there is some merit in the argument that an order made, with both jurisdictions in the contemplation of the Court (i.e. the ancillary relief being based upon the foreign decree rather than just simply recording such in a recital), will have greater weight in the other jurisdiction if the matter ever comes before that court again. The England and Wales Court cannot clearly restrain another de jure but it can increase the extent to which it creates a de facto restraint.

In a recent case in the High Court (T v T [2008] EWHC (Fam) (unreported)) Mr Justice Holman refused leave to apply under the MFPA 1984. The case concerned similar circumstances and one of the reasons for the decision was that an application under the MFPA 1984 could only be made in respect of a 'substantive application', as opposed to, say, just a dismissal. The Court was taken to s 12(4) which states that:

"In this Part of this Act…."order for financial relief" means an order under section 17 or 22 below of a description referred to in that section"

Section 17 is the most relevant and states:

"Orders for financial provision and property adjustment
(1)Subject to section 20 below, on an application by a party to a marriage for an order for financial relief under this section, the court may—
(a)make any one or more of the orders which it could make under Part II of the 1973 Act if a decree of divorce, a decree of nullity of marriage or a decree of judicial separation in respect of the marriage had been granted in England and Wales, that is to say—
(i)any order mentioned in section 23(1) of the 1973 Act (financial provision orders); and
(ii)any order mentioned in section 24(1) of that Act (property adjustment orders);"

The Court are therefore able to make any order which they would be able to under ss 23(1) and 24(1) of the MCA 1973.

As every practitioner will know, a clean break is dealt with in the MCA 1973 at s25A(1) in which the Court has a duty to consider whether a clean break is appropriate. s 25A is not included in s 17 of the MFPA 1983. It was open to the draftsman, when drafting s 17, to simply state that "the Court has all the powers available to it, as if it were dealing with the case under the MCA 1973". Such a formula is not stated. It makes specific reference to ss 23 and 24 in reference to the test for an "order for financial relief". The question is does this construction prevent the Court making a clean break order.

On one reading of s 25A(1), it does not provide the basis upon which the Court can make a clean break order, rather, it is the basis for the duty of the Court to consider making one. It is specifically referable to:

"[when] the court decides to exercise its powers under sections 23(1)(a), (b) or (c), 24 or 24A…."

The section itself states that the clean break forms part of the Court's exercise of powers under those sections, the sections included within s 17 MFPA 1984.

The fact remains that s 23 is silent as to possibility of a clean break order, or any such dismissal; meaning that one has to negatively interpret the section if one is to derive an order capable of dismissing the parties' claims. It is only really when one reads s 23 in conjunction with s 25A(1) that the possibility of a clean break becomes clear, something that the MFPA 1984 does not legislate for; however, if the above interpretation of s25A(1) is right, that is to say that ss 23 and 24 provide the basis of the court's powers in respect of making a clean break order, then it surely falls within the Court's powers under the MFPA 1984 to make a clean break order.

The Court in T v T were very clear that it was not open to them under the MFPA 1984 to make a 'non-substantive, clean break order'. Either this decision was wrong, that an order for a clean break can be made as "an order for financial relief", or, the MFPA 1984 is in need of amendment. The amendment would be simple, allowing s17 to read:

(i)any order mentioned in section 23(1) of the 1973 Act (financial provision orders); and
(ii)any order mentioned in section 24(1) of that Act (property adjustment orders);
(iii)any order mentioned in section 25A(1) of that Act (dismissal of either one or both parties' claims)"

It is clear that such an amendment would serve an extremely useful purpose. The relevance of this article is not restricted to just the factual circumstance of T v T, it applies to any party desirous of a clean break order, whether they be husband or wife, rich or poor. It must be right that the Court have available to them the power to dismiss claims as well as order financial relief under the MFPA 1984.

29 Bedford Row