Divorce prospects for Foreign Nationals in Wales and England
The generosity expressed by the English courts makes the United Kingdom a highly popular destination for divorce. Each year there are 24,000 divorces heard in the courts in England and Wales involving foreign national. Divorce in these places is often considered more favourable to weaker party which is the women as they have either no income or a smaller income compared to her husband. However, this is not in every case. Further, maintenance is largely discretionary rather than a fixed formula, which is seen in other jurisdictions. This draws our attention towards the need of pre-nuptial agreements.
Another advantage given to the foreign spouse is that by Part III of the Matrimonial & Family Proceeding Act 1984 (MFPA 1984) provides an opportunity, as long as all the necessary provisions are met by the applicant, to vary the financial arrangements to make a fairer settlement, like in the case, divorce has taken place abroad and the financial settlement was not entirely fair, may be due to cultural bias towards men or lack of funds to enable proper representation.
The following criteria had to be fulfilled before making an application, at the time of the foreign decree:
- at least one of the parties to the marriage shall have been domiciled in England and Wales, or,
· at least 1 of the parties is entitled to a beneficial interest in a property in England and Wales that was once the matrimonial home, or,
- at least one of the parties was habitually resident in England and Wales for one year preceding the application or decree.
The application is made in two stages, known as the filter mechanism.
An application is made for leave under s.13 and R3.17 FPR. The court must consider following once permission has been granted:
Whether it is appropriate for a United Kingdom court to make the order the applicant is seeking. If the answer is “yes” the court considers all of the circumstances of the case, including all the relevant factors for the start of financial relief proceedings, including:
· the financial resources of the parties,
· the standard of living they enjoyed during the marriage and
· their competing financial needs.
Further, the English court has the power to ‘revisit’ any case and grant the full range of remedies which are usually available to it.