What is Part III Application under the Matrimonial and Family Proceedings Act 1984?

Have you been divorced in a foreign country but have yet to resolve the financial claims you have as a result of the marriage? If so, you could potentially apply in England and Wales through a Part III application under this Act. It is a crucial piece of legislation, which provides a legal framework for dealing with financial settlements in international divorce cases. In particular, this piece of legislation provides recourse to parties in pursuing financial remedy proceedings in the UK, when they have been divorced abroad, provided that the criteria, detailed below, is met.  

Part III of the Matrimonial and Family Proceedings Act 1984 (MFP Act 1984) was initially introduced to deal with the practice of “forum shopping”. This is a term coined by family solicitors to advise clients on the most appropriate jurisdiction for them to issue divorce proceedings; of course, it goes without saying that the option to issue financial remedy proceedings in England and Wales is based on whether there is sufficient jurisdiction for one or both parties to do so.  

It is important to be aware that different countries are governed by different laws, and therefore it is necessary to ensure that, specifically in the context of financial matters, you should make your application in a country in which the laws are likely to be most favourable to your particular set of circumstances.  Please visit my previous blog for details surrounding how the issue of jurisdiction is dealt with.  

The Effect of Divorce

Once a divorce is finalised, a Part III application ensures that either party can still request a financial settlement. If an agreement is not reached between the parties, the court may step in to decide the most appropriate order. 

What are the conditions that will need to be met in order to qualify for making a Part III application:

Most importantly you will need to establish that the English courts have jurisdiction, by demonstrating the following:  

1. A divorce has taken place in a foreign country and is recognised as valid in England and Wales.  

1. Either the Applicant or Respondent has a connection with England and Wales by way of either habitual residence or domicile, or that there is a substantial amount of assets within the UK. 

1. The Part III application has been made within a reasonable time from the date the divorce was granted.  

What financial provision can you seek via a Part III application?

The court can make all the same orders it is able to if the divorce had taken place in England or Wales:  

• Capital Orders: These concern the division of property, including the family home, pensions, savings, and other capital assets. It allows the court to make orders for lump sums, property adjustment, or pension sharing orders.  

• Income Orders: These include payments made from one spouse to another to enable them to continue to meet their needs after separation if they are unable to do so independently, and orders for maintenance to be paid for the benefit of any children of the family.  

The court’s power and important considerations

The court has a broad discretion to determine what order is appropriate. The primary consideration will always be the welfare of any children involved, if any. However, it is largely guided by the principles of fairness and equality as stipulated under Section 25 of the Matrimonial Causes Act 1973, so it will also consider: 

• The financial needs, obligations, and responsibilities of the parties. 

• The standard of living during the marriage. 

• The age of both parties, the duration of the marriage, and their respective contributions (both financial and non-financial) to the marriage. 

• The needs of any children involved. 

Procedure for Part III applications:

Assuming jurisdiction can be established 

a) The party making the application must have “leave to apply” before making the application. This means that they must obtain the courts permission to make the application on the basis that they have a ‘substantial ground’ for making the application. In determining whether there is a substantial ground, the court will specifically consider the following matters:

1. 1. the connection which the parties to the marriage have with England and Wales; 
   2. the connection which those parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated;
   3. the connection which those parties have with any other country outside England and Wales; 
   4. 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; 
   5. 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; 
   6. 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; 
   7. the availability in England and Wales of any property in respect of which an order under in favour of the applicant could be made; 
   8. the extent to which any order made is likely to be enforceable; 
   9. the length of time which has elapsed since the date of the divorce, annulment or legal separation. 

b) If the court grants leave it will consider the application with reference to the considerations listed above which include the financial needs and obligations of both parties, the standard of living during the marriage, the parties’ contributions, and any agreements or arrangements that have been made.  

c) The primary consideration should be the welfare of any child of the family. It is not appropriate to make an order which gives the claimant more than they would have been awarded had all proceedings taken place within this jurisdiction, and where possible, the order should make provision for the reasonable needs of each spouse 

d) Enforceability: Once a financial order has been granted, it can be enforced. This means that the usual options for enforcement are available such as freezing assets, selling properties or in extreme cases, imprisonment for contempt of court.  

Conclusion

Although a Part III Application of the Matrimonial and Family Proceedings Act 1984 is legislation employed to prevent forum shopping; it offers important remedies for individuals seeking financial relief following the breakdown of a marriage. The ability for individuals to apply for property transfers, spousal maintenance and lump-sum payments ensures that financial issues between parties can be resolved fairly and in a way that protects the interests of both parties, as well as any children involved. 

If you’re considering or involved in a divorce or dissolution overseas and need to explore potential applications under this Act, it’s advisable to seek legal advice in all jurisdictions where you think you may be able to make a claim to better understand your options and rights. Our team of family law specialists will be able to advise you on the law in England and Wales and whether pursuing an application here may be a possibility. 

How we can help

Family law proceedings that have an international aspect can be complex. This is especially true if there are foreign assets, such as properties, to consider and so taking advice from a specialist will be key.

Our team of family law specialists will be able to advise you on the best possible options available to you and will assist you every step of the way during the process.

Aalia Hajee-Hussein is a Paralegal in our Ascot office.