ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
took effect or for 12 months before the date of the application; or • one of the parties must have an interest in a property in England and Wales that had been a matrimonial home – albeit, in this case, their claim is limited to the value of the property – and the interest can be a beneficial interest, so their name does not necessarily need to be on the legal title. Once the jurisdictional requirements are met, there are two stages to Part III claims: • permission to apply; and • the substantive application. Permission to apply Application is made pursuant to the FPR, Pt 18 and must be made without notice. The test for permission to apply is set out in Section 13 of the MFPA 1984: “The court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order.” In determining whether to grant leave, the court will have regard to a number of factors, includ - ing the connection the parties have with England and Wales, the connection the parties have with the country where they got divorced, and any financial benefit that the parties or a child of the family has received (or are likely to receive) in a different country. The full list of factors is set out at Section 16 of the MFPA 1984 and, therefore, Sections 13 and 16 of the MFPA 1984 should be read in conjunction with each other. Granting of leave If leave is granted, the respondent to a leave application can apply to “set aside” the grant - ing of leave. The procedure for this has recently changed following the UK Supreme Court case
of Potanina v Potanin (2024) UKSC 3. The test is now that the without notice order should be set aside because the test for granting leave under Section 13 is not met. Previously, the threshold was much higher, and respondents would have to show a “knockout blow” to the application for leave. If leave is granted, then the relief available is the same as if the divorce had been conducted under English law. 2.2 Service and Process Service of the financial application is generally done by email. There is no requirement for per - sonal service within the jurisdiction. Once proceedings are issued, a first hearing (called a “first appointment”) is fixed, as well as the timetabling for the exchange of vari - ous documents including – most importantly – financial disclosure by way of a standard form called Form E. At the first appointment, the court sets out the timetabling for provision of further documents and reports particular to the case, including replies to questions raised and expert reports. A second hearing, called a finance dis - pute resolution (FDR) hearing, is fixed. The FDR hearing is a court-based mediation whereby the parties try to settle the issues in question. If the matter is not resolved, then another short directions hearing is listed where the matter is set down for a final hearing and further directions are given for the provision of, for example, witness statements. 2.3 Division of Assets The court will consider a number of factors when deciding how to exercise its discretion when dividing assets on divorce. These factors
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