Until recently, speed was of the essence in cases where one or more of the parties were resident abroad or a foreign national. It was vital for your client to start their divorce proceedings against their spouse first and to win the race to court.
The financial weaker party would win if they started their divorce in England first and would lose if their wealthier spouse issued abroad first. This is because the English courts are the most generous in the world for the financially weaker party.
After a foreign divorce, the English court would only make financial orders if the weaker party had suffered a substantial injustice.
However, the Supreme Court in the case of Agbaje dismissed that notion and said that the test was whether there had been inadequate financial provision for the weaker party by the foreign court.
The Supreme Court also looked at the strength of the parties’ connection to England, e.g. the amount of time spent there during the marriage or the presence of English assets.
It was decided that where the parties’ connection to England is very strong, the test as to adequacy could be based on the approach of the more generous English court rather than on the law of the foreign court who granted the original divorce.
This means that financial claims in England after a foreign divorce are likely to be more common and will (in some circumstances) make the rush to court less critical.
Those seeking to issue abroad will have to take into account the possibility of a later, more generous English financial order which may make a previous judgment in foreign proceedings worthless as the English court can in theory consider matters afresh
How does the wealthy party protect themselves?
The position of the wealthier party in European proceedings may be protected by a maintenance order abroad as the English court can’t then make its own maintenance order. But the English court may get round this by making property orders rather than maintenance orders or by varying the foreign maintenance order.
Therefore, any pre-nuptial agreement or foreign divorce settlement should include a clause which seeks to prevent any financial claim in England after a foreign divorce.