Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) gives the courts in England and Wales the power to grant financial relief, after a marriage has been dissolved (or annulled) in a foreign jurisdiction.
The English courts can grant financial relief to alleviate adverse consequences where no financial provision is made by the foreign court, or where the provision made is deemed to be inadequate.
A “Part III” application for financial relief in England, after a Singapore divorce, is most likely to become an appropriate and viable way to proceed in cases where:
- The Singapore courts do not have jurisdiction over overseas matrimonial property and the major assets of the marriage are located either in England or worldwide;
- It may be difficult or impossible for the Singapore courts to enforce financial orders that it has made;
- The applicant could not afford to hire a divorce lawyer in Singapore and was therefore subject to a prejudicial order;
- The applicant is left in a predicament of real need, assessed on a case-by-case basis.
An application for financial relief in England after a Singapore divorce might also become a technical necessity to ensure that an English pension can be shared (i.e. that the pension assets are split among the divorcing couple).
This is because, English pension companies generally will not permit a pension to be shared based on a foreign court order or a mere agreement between the parties.
When am I Entitled to Claim Financial Relief in England?
Either party may apply to the English court for financial relief where:
- The marriage has been dissolved by means of judicial or other proceedings in an overseas country, such as Singapore;
- The divorce is entitled to be recognised as valid in England and Wales;
- The jurisdictional test is satisfied; and
- The permission test can be satisfied.
The jurisdictional and permission tests will be explained in greater detail below.
When am I Not Entitled to Claim Financial Relief in England?
If the applicant has remarried, they are barred from making an application to claim for financial relief in relation to the marriage that has been dissolved.
What are the Possible Financial Relief Orders the English Courts might Make?
Depending on how jurisdiction is established, the court may be able to make various orders in relation to both capital and income as follows:
- A lump sum order
- An order for the sale of a property or shares
- An order for the transfer of property or shares
- A pension-sharing order. In general, pension claims can be dealt with by setting off the capital fund against other assets as part of an overall settlement, or by sharing the pension funds themselves by way of a lump sum and/or maintenance. A pension-sharing order is usually a feature in longer marriages (an estimated 10 years and longer) and one party has a sizeable pension fund with the other party having little or no pension fund
- Periodical payments for one of the parties to the marriage (i.e. spousal maintenance)
- Periodical payments for any children until the child reaches 16 years old (or 20 if they’re in full-time education.)
Where jurisdiction depends solely on either party having a beneficial interest in a matrimonial home located in England and Wales, section 20, MFPA 1984 limits the court’s powers to the value of that home.
For example, the court may make one of the following orders:
- Transfer of one party’s interest in the home to the other party in the marriage;
- Sale of the home and division of the resulting sale proceeds; or
- Lump sum payment by one party to buy out the other party’s claims to the property.
However, the court will not have the power to make a maintenance order.
Additionally, where jurisdiction is based on the domicile of just one of the parties, maintenance claims may be restricted.
Do the English courts have jurisdiction to make an order for any matrimonial property located in Singapore?
The English court can make orders that purport to deal with matrimonial assets located in Singapore.
However, the applicant must seek legal advice from a divorce lawyer in Singapore as to the enforceability of the English order in Singapore.
Interim maintenance order
Under section 14, MFPA 1984, if permission to make an application for financial relief is granted, the court has jurisdiction to make an interim maintenance order if it appears that the applicant or the children of the family are in immediate need of financial assistance.
This is unless, jurisdiction is established on the basis of a beneficial interest in a matrimonial home in England and Wales.
How Do I Apply to Make a Claim for Financial Relief?
The application must begin with a “without notice application” for permission to proceed. This means that the proposed respondent to the application is initially not made aware that the applicant has made an application for permission.
This permission stage is designed to filter out applications which are lacking in merit before the respondent is put to the significant costs of defending an application which is flawed from the outset.
At the permission stage the applicant must be able to show that they satisfy the jurisdictional requirements and that the permission test set out in Agbaje v Agbaje [2010] has been met.
Satisfying the jurisdictional test
The jurisdictional requirements (i.e. jurisdictional test) set out at section 15(1), MFPA 1984 are as follows:
- Either party is domiciled in England and Wales on the date of the application for permission (to court for financial relief), or on the date that the divorce in the foreign country took effect; or
- Either party was habitually resident in England and Wales for 1 year ending on either:
- The date of the application for permission; or
- The date that the divorce in the foreign country took effect; or
- Either party has, at the date of the application, a beneficial interest, in a house in England and Wales that was at some time during the marriage used as a matrimonial home. The property need not have been the main matrimonial home.
Satisfying the permission test
The permission test set out in Agbaje v Agbaje [2010] is that the applicant must show that they have a “substantial ground” for the application to proceed.
The Supreme Court clarified that a “substantial ground” has a higher threshold than a ‘serious issue to be tried’ or ‘good arguable case’.
The factors that the judge will take into account when assessing whether the applicant has such a “substantial ground” are detailed in section 16(2), MFPA 1984. These are summarised as follows:
- The connection that the parties to the marriage have with:
- England and Wales;
- Singapore; and
- Any other country outside England and Wales;
- Any financial benefit that the applicant, or a child of the family, has received, or is likely to receive, in consequence of the Singapore divorce (a short expert report from a lawyer in Singapore should be arranged);
- The extent to which any Singapore order for financial relief has been complied with or is likely to be complied with;
- If the applicant has omitted to exercise any right to make financial relief claims in Singapore, the reason for that omission;
- The availability in England and Wales of any property in respect of which an order in favour of the applicant could be made;
- The extent to which any order made is likely to be enforceable; and
- The length of time that has elapsed since the date of the divorce or annulment.
An application under Part III for permission must be supported by a detailed statement in support.
The statement in support should meticulously address the background of the case, why any foreign divorce is entitled to be recognised as valid in England and Wales, and how the jurisdictional requirements are satisfied.
The statement should demonstrate that the permission test set out in the legislation and case law have been met by reference to each and every one of the section 16 factors (mentioned above).
Where available, complete documentary evidence should be exhibited to the statement.
The statement in support of the application is also a good opportunity to discuss in detail the overall merits of the case beyond the application for permission.
What happens if the “without notice application” for permission is successful?
If permission is granted, the applicant will then make the financial relief application in Form D50F and procedurally, the case would proceed as if the divorce had taken place in England.
The applicant must serve a copy of the following on the respondent:
- The court order granting permission for the “Part III” application
- The “Part III” application itself
- Supporting evidence for the application
- A statement of the respondent’s right to make an application to vary or set aside the court order granting permission for the “Part III” application
It is sensible to secure a transcript of the court judgment granting permission for the “Part III” application as soon as possible if an application from the respondent to set aside the grant of permission is anticipated.
There are multiple well-known transcription services in London who can provide the necessary forms and advise on the procedure.
The respondent then has 7 days from the date of service to apply to set aside the grant of permission.
Unless it is clear that a decisive authority has been overlooked, or that the court has been misled, the court is likely to adjourn an application to set aside to be heard with the substantive “Part III” application for financial relief.
When Should the Claim for Financial Relief be Made?
The application to claim for financial relief can only be made after the conclusion of the divorce in Singapore.
Although there is no time limit within which the application for financial relief should be made, excessive delays undoubtedly harms the merits of the application.
Do the Applicants Have to be Present at the English Courts to Make the Application or Attend the Hearing?
The early stages of a Part III application can be conducted by English lawyers, while the applicant remains based in Singapore. Attendance at hearings can be via videolink.
However, it is preferable for the applicant to physically attend contested hearings, where possible, to assist with communication with your lawyer both in and out of court.
Are There Any Fees Involved in Making the Application?
The fees involved in a Part III application include:
- Fixed court fees to initiate the application;
- The fees to obtain a financial report from a Singapore lawyer; and
- The ongoing lawyers’ fees in England to fully prepare the case and to have conduct of the litigation.
It is possible for the court to intervene to order the respondent to pay the applicant’s fees, but such an order can be made only after permission to proceed with the Part III application has been granted.
Therefore, the applicant must have access to sufficient funds to cover the costs of the permission application from the outset.
It is essential to obtain a range of likely fees from your lawyer before a case is commenced so that the proportionality of likely fees can be assessed against the likely outcome.
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Although there may be jurisdictional and factual hurdles to clear, in appropriate circumstances a Part III application is a potentially powerful means to address any omissions or unfairness that may be caused by the operation of foreign law.
If you are a British national considering claiming financial relief in England after divorcing in Singapore, contact Sonny Patel at Expatriate Law.
Expatriate Law is a team of English lawyers who specialise in international divorce and family law and, conduct divorces for British expatriates through the English courts.
