You have gone through a divorce overseas. Can you now ask a court in England & Wales to determine financial relief without telling the other party?
Under the Matrimonial and Family Proceedings Act 1984 (the Act), you can apply for permission to bring proceedings for financial relief. Your application must be made without notice to the other party. You’ll need a “substantial” reason. If you succeed, the other party can apply to set aside that permission for a “compelling reason”.
The Supreme Court in London recently revisited the interpretation of “substantial” and “compelling” reasons.
Background
The husband and wife are Russian. They were married in Russia in 1983. They lived in Russia throughout their marriage and have three grown-up children.
During the marriage, the husband accumulated substantial wealth as the beneficial owner of assets valued at $20bn. The couple separated in 2007. The husband transferred several large sums of cash to the wife then. They divorced in 2014.
The wife moved to London in 2017. In 2018, she made an application without notice under the Act. This was granted in 2019. The husband successfully applied to have this set-aside. The Court of Appeal found for the wife. The husband appealed to the Supreme Court.
Judgment
By a 3:2 majority, the Supreme Court found for the husband. That said, as the Court of Appeal had not yet considered the substantive case, the wife’s original application should first be determined.
For the purposes of the Act, “substantial” means “solid”. The threshold is higher than being abusive or totally without merit but lower than a “good arguable case”. It is more like that of a “good arguable case”.
Other points of note included:
- Strict Time Limit: Any application to set aside an order made without notice must be made promptly. The Court did not define a specific timeline but emphasized that ‘promptly’ would depend on the particular circumstances of the case.
- Focus on Procedural Fairness: Judges considering applications to set aside will focus primarily on whether there has been procedural unfairness rather than delving into the merits of the original claim.
- The Importance of Candor: The Supreme Court stressed the importance of full and frank disclosure by the party applying for an order without notice, even in circumstances where time and information might be limited.
Comment
The clarity provided by the Supreme Court places the burden on applicants to show a real prospect of success. This will have implications for “divorce tourism”, with claims subject to greater scrutiny beyond deep pockets.
For more information about this article or any other aspect of family law and divorce, contact your Napthens Solicitors in Preston, Fylde Coast, Southport, and across the North West today.
