Where parties have separated and obtained a divorce in an overseas jurisdiction, they cannot simply apply for financial relief in the English and Welsh jurisdiction. To do so, they must first seek leave of the Court under Part III of the Matrimonial and Family Proceedings Act 1984.
When considering such applications, the Court will first look at whether it has jurisdiction under one of the three gateways in section 15(1) . Under section 15(1) of the 1984 Act, jurisdiction is established if :
a) either of the parties is domiciled in England and Wales on the date of the application for leave under section 13 above or was so domiciled on the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or
b)either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or was so resident throughout the period of one year ending with the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or
c)either or both of the parties to the marriage had at the date of the application for leave a beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.
Once jurisdiction is established, the Court then moves on to consider whether or not leave ought to be granted under section 13 of the 1984 Act.
The Court considers section 13 with section 16, the latter of which sets out the relevant considerations which ought to be considered in such applications.
The Supreme Court in Agbaje v Agbaje [2010] UKSC 13; [2010] 1 FLR 1813, summarised the test applicable in such cases. At paragraph [33] Lord Collins said:-
“In the present context, the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than ‘serious issue to be tried’ or ‘good arguable case’ found in other contexts. It is perhaps best expressed by saying that in this context ‘substantial’ means ‘solid'”
This test was recently considered and applied by the High Court in Lockwood v Greenbaum [2022] EWHC 845. In essence, the Court will consider all the circumstances of the case whilst having particular regard to the nine factors set out at section 16(2) of the Act, and thereafter consider “whether there are solid grounds for the application”.
For help with Family Court Financial Remedy proceedings, contact Zubair Mughal. Zubair is a London-based family lawyer who can help with any aspect of family disputes, such as Child Arrangements, Divorce, and matrimonial finance.
