A leading High Court judge has commented on the practical difficulties encountered by those looking to bring applications for further financial provision following their overseas divorce.
Part III of the Matrimonial Family and Proceedings Act 1984, provides scope for an individual divorced overseas to apply to the Court for additional provision from an ex-spouse, where the overseas settlement awarded was insufficient. The legislation was used relatively sparsely until the leading Supreme Court case of Agbaje was decided in 2010; extending the circumstances in which such applications might be entertained.
The legislation can sometimes be used not only for those who consider they have been wronged through the overseas decision, but also those who are unable to implement the overseas decision without further guidance from the Court. The more frequent example of this is where an overseas court purports to share a UK based pension in the context of a divorce. Many scheme trustees fail to recognise overseas orders and insist that only on the basis of an order obtained in the English Courts will they make the necessary adjustment.
Aside from the strict jurisdictional requirements that need to be met before an application can be made, a practical difficulty often arises for those wishing to bring such an application who are located outside of London. The Statute provides that leave to bring the application must first be obtained by applying to the Royal Courts of Justice in London. Essentially, this means that a short hearing has to take place at the Principal Registry to determine whether the merits exist before the application can be pursued. It is usual then for the substantive application to be dealt with in the Royal Courts of Justice as well.
This can cause some significant upheaval for those clients looking to bring an application under the act. Clients for whom we have acted in such applications have been faced with the same practical difficulties.
Mr Justice Holman in the case of Barnett v Barnett recently observed that there is no real reason why the applications cannot be heard by judges in the local courts. In that case, having dealt with the permission application, he ordered that the substantive application should be heard in the Applicant’s local court of Stoke of Trent.
He went on to highlight the changes in legislation that might be required in order to allow for all MPFA applications – to include permission applications – to be dealt with in local courts as well.
It is hoped that the Law Commission will grasp the nettle and provide for this change in the years ahead, since it would make a great deal of practical difference to those looking to bring such applications.