Part III applications – striking the right balance

Part III of the Matrimonial and Family Proceedings Act 1984 is a powerful but often misunderstood area of the law. It enables family courts in England and Wales to make orders for financial provision after a divorce has already been obtained in another jurisdiction, if insufficient provision has been made to the financially weaker spouse overseas.

The intention when the law was drafted in the 1980s was to protect vulnerable parties to a divorce, whose spouse had used another jurisdiction which was favourable to him/her in order to obtain a divorce and a financial award which simply did not meet the needs of the weaker spouse.

It is necessary for such parties to prove to the court that they have a substantial connection to England and Wales. The doctrine of forum non conveniens specifically does not apply to part III proceedings as the whole basis of this legislation is that it might be appropriate for two jurisdictions to be involved.

Although there is no requirement for the financially weaker party to prove hardship, injustice or exceptionality, it is insufficient simply to prove there is a disparity between a foreign award and what would be awarded following an English divorce; the rationale being that it should not be the role of the English court to correct what it sees as deficiencies in foreign legal systems.

Since the 1984 legislation was enacted, the family court initially took rather a restrictive approach to part III until the Supreme Court decision in Agbaje v Agbaje [2010] UKSC 13.

This case involved a Nigerian couple who had divided their time between Nigeria and London for much of their marriage. Notably, all five of their children were born in England and the wife had lived in London since the parties separated. Following the husband having obtained a divorce in Nigeria, the wife successfully applied under part III and was awarded 39% of the family assets, enabling her to purchase a new home in England.

Since that case, momentum has grown and it is clear from the reported decisions that a growing number of people have sought to use this legislation in order to benefit from the ‘generosity’ of the family courts in England and Wales. This has, particularly over the past 20 years, earned our reputation as the ‘divorce capital of the world’.

In analysing whether such criticism is well founded, it is helpful to consider the approach to such cases in other jurisdictions.

In France, for example, the local court will only revisit a decision of a foreign court if its recognition is not possible due to a violation of public policy. One can also seek judicial review of a compensatory benefit (for example periodical payments) if a foreign order was fraudulently obtained. In Germany, the local court can only make orders if the foreign divorce court has not yet decided on ‘ancillary consequential matters’ such as pension entitlements. In Italy the court can only review a financial award following an overseas divorce if new factual or legal circumstances have arisen since the proceedings were dealt with. Similar provisions to part III do exist in Scotland, however the criteria are so restrictive that in practice it is rare for such applications to succeed.

Some critics of English family law have deplored this piece of legislation, given its ability to attract ‘divorce tourists’ – parties to a divorce who specifically seek to move to London simply to establish jurisdiction here so that they can capitalise on the generosity of the English family courts. Such awards often run into the millions, so it may certainly be worth it for those looking for a ‘top-up’ – though this clearly was not the intention of the legislation.

It is often said that part III appears now to be routinely deployed by ultra-high-net-worth individuals in order to top up financial awards they have already received from foreign jurisdictions. Is this a prime example of English judicial imperialism and is it really appropriate in today’s society? It is notable, though perhaps unsurprising, that most other countries adopt a more hands-off approach to such cases; respecting the decisions of foreign courts.

The long-running Potanina v Potanin [2021] EWCA Civ 702 case is listed to be heard by the Supreme Court next week, on the issue of whether the wife should be granted permission to apply for financial relief in England. In this case a divorce was obtained in Russia, where the couple lived for the entirety of their married life. The husband is appealing a Court of Appeal decision which concluded that the test is not high for the grant of leave to apply under part III, but there must be a ‘solid’ case to be tried.

Family lawyers in London await the decision of the Supreme Court with bated breath. In the meantime, hard-done-by spouses, aggrieved by inadequate financial awards made elsewhere, continue to flock to London in order to engage the courts of the divorce capital of the world.

Harriet Errington is a family partner at Boodle Hatfield, London