ENGLAND & WALES Law and Practice Contributed by: Jeremy Levison, Miranda Green and Alexander Bartlett, Levison Meltzer Pigott
Staying Proceedings There are circumstances in which multiple jurisdic ‑ tions may have jurisdiction to hear proceedings. As a member of the EU, the question was essentially one of who got there first. Now that the UK has left the EU, the court shall be concerned not only by the timing of the application but rather with which is the more suitable forum more generally. Where the competing jurisdiction is a non-UK country, the court has discretion as to whether or not to grant an application for a stay of proceedings of this juris ‑ diction to allow matters to proceed in an alternative jurisdiction. The court will consider which jurisdiction, on the bal ‑ ance of fairness, is the more suitable forum to hear the application. There are two potential stages. The first question is which is the more natural forum for the dis ‑ pute: ie, where is the centre of the parties’ relationship and in which location would it be more convenient, proportionate and effective to conduct any contested hearings. The second question is, notwithstanding that another jurisdiction may be the more natural forum, should proceedings go ahead here because justice requires it. The question is not merely whether someone would achieve a “better” outcome in these courts. Rather, the issue is whether there are special circumstanc ‑ es indicating that there would be something akin to substantial injustice if these courts did not deal with matters.
It follows that any party who wishes to contest the jurisdiction of the finances would need to do so via
challenging the location of the divorce. Financial Claims After Foreign Divorces
It is possible for someone who divorced in a foreign jurisdiction to bring a financial claim in the courts of England and Wales. This is known as a Part III Appli ‑ cation because the jurisdiction typically stems from the third part of the Matrimonial and Family Proceed ‑ ings Act 1984 (MFPA). The application seeks redress in circumstances where the applicant has received inadequate or no financial provision from another jurisdiction. The courts shall have jurisdiction to hear an applica ‑ tion under Part III where: • either party was domiciled in England and Wales on the date of the application or on the date on which the previous divorce took effect; • either party was habitually resident in England and Wales throughout the period of one year immedi ‑ ately prior to the date of the application or the date the previous divorce order took effect; or • either party has or had at the date of the applica ‑ tion an interest in property in England and Wales, which has acted as the parties’ family home during the marriage (though under this limb their claim would be limited to this property). An applicant must obtain the court’s permission to bring the claim. A “substantial ground” must be shown. Section 16 of the MFPA sets out the factors which a court will consider, including: • any delay in bringing the application; • the parties’ connection to this (as against other) jurisdiction; and • the financial remedies available to the party (or a child of the family) in the alternative jurisdiction, including the prospects of enforcing an order which is made. The court also has a broader discretion to consider any other factors which are relevant to whether the applicant has a “good, arguable case” in seeking additional financial relief.
2. Financial Proceedings 2.1 Choice of Jurisdiction in Financial Proceedings Jurisdictional Grounds
There is no distinction in the jurisdictional grounds for financial remedy proceedings as opposed to the divorce process. That is because the financial ele ‑ ments are ancillary to, and flow from, the existence of the divorce process. Where the courts of England and Wales deal with a divorce application, so too shall they be entitled to make financial orders.
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