ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
2. Financial Proceedings 2.1 Choice of Jurisdiction Grounds for Jurisdiction
of the marriage or civil partnership, fraud, and procedural non-compliance. For international and mobile clients, it is there - fore important to take legal advice and check that the jurisdictional requirements for divorcing in England and Wales are met. Stay of Proceedings One spouse may dispute divorce on the ground of jurisdiction and issue divorce proceedings in another country. This will result in what are known as “parallel proceedings”. The court can exercise discretion to stay proceedings until the forum dispute has been determined. The test the English court will use when decid - ing the appropriate forum for the divorce is the doctrine of forum non conveniens. The court will consider the links the parties have to both coun - tries, including habitual residence, domicile, nationality, where any children attend school and in which country the parties hold assets. In addition to a stay, the court has the power – in limited circumstances – to make a per - sonal injunction called a “Hemain injunction”. A Hemain injunction is a temporary measure to prevent the other party from pursuing divorce proceedings in a foreign jurisdiction and is an option parties may pursue at an early stage of divorce proceedings where there are competing proceedings and steps have been taken by one party that make it iniquitous for the proceedings in the other country to proceed.
The grounds for jurisdiction for financial remedy proceedings are the same as for divorce. As the jurisdiction for financial orders is linked to that for divorce proceedings, a party wishing to contest jurisdiction does so by contesting the jurisdiction for the divorce. Financial Claims After Foreign Divorce Courts can hear financial claims after a foreign divorce in limited circumstances. Part III of the Matrimonial and Family Proceedings Act 1984 (the “MFPA 1984”) governs the bringing of finan - cial claims after a foreign divorce; hence, they are often known as “Part III” claims. There are various requirements before such relief can be offered: • the foreign divorce must be recognised as legally valid; • the party applying for relief must not have remarried; and • there must be a sufficient connection to Eng - land and Wales. The sufficient connection to England and Wales can be established via one of three ways, as set out at Section 15 of the MFPA 1984: • either the party or their former spouse must have been domiciled in England and Wales (ie, they consider it their true home) at the time of the foreign divorce or at the time of the application; • one of the parties must have been habitually resident in England and Wales (ie, their life has been mainly based here) for 12 months before the date on which the foreign divorce
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