Part III of the Matrimonial and Family Proceedings Act (‘MFPA’) 1984 Act gives English and Welsh courts the power to grant financial remedies after an overseas divorce.
This power can still be used even when a financial award has previously been made to a party in a country outside England and Wales.
The purpose of this power was explained in Agbaje v Agbaje [2010] UKSC 13 by the Supreme Court in paragraph 71. They stated it was needed to alleviate “the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England.”
This power was recently looked at in the Supreme Court’s Judgment in Potanin v Potanina [2024] UKSC 3 on 31st January 2024.
Brief Chronology of the Facts
- Both parties were born in Russia in 1961.
- They married in 1983.
- In February 2014 their marriage of 30 years was dissolved by a Russian Court.
- Both parties were 53 years old and habitually resident in Russia.
- Since the 1990s the husband had accumulated wealth of around $20bn.
- A Russian court awarded the wife assets equivalent to around $6.5m.
- $6.5m was a lower sum compared to what the wife would have received if the property divided included assets beneficially owned by the husband.
- The wife obtained a UK investor visa in June 2014.
- The wife issued an application under s.13 of the MFPA 1984 on 8th October 2018.
- Cohen J made a without-notice order on 25th January 2019.
- The husband was served the order in Moscow and applied to have it set aside.
- Cohen J made an order on 8 November 2019 setting aside his initial order made without notice to the husband and dismissed the wife’s application for leave under s.13.
- The wife appealed this and the Court of Appeal (‘COA’) allowed her appeal.
Snapshot of the Law
Leave of the court is required before an application for financial relief under Part III of the MFPA can be made.
Section 13 of the MFPA imposes this requirement and states:
“(1) No application for an order for financial relief shall be made under [Part III] unless the leave of the court has been obtained in accordance with rules of court, and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order.”
The applicable rules of the court as mentioned in s.13 are contained in Part 8 of the Family Procedure Rules 2010 (“the FPR’).
Outcome
The Supreme Court allowed the husband’s appeal.
It was held that the test applied by the COA in deciding whether Cohen J was entitled to set aside his without notice order was wrong in law.
The Supreme Court stated in paragraph 98 that ‘The true position is that on an application, such as the husband made here, under FPR rule 18.11 to set aside an order made without notice, the court is required to decide afresh, after hearing argument from both sides, whether the order should be made or not. There is no requirement for a party applying under FPR rule 18.11 to set aside leave to demonstrate a “knock-out blow”, or a compelling reason why the court should exercise the power to set aside, or that the court was materially misled. The onus remains on the applicant for leave to satisfy the court that there is substantial ground for the making of an application for financial relief under Part III.’
Please see the link below to read the full judgment
https://www.supremecourt.uk/cases/docs/uksc-2021-0130-judgment.pdf
The contents of this post do not constitute legal advice and are provided for general information purposes only.
The contents of this post do not constitute legal advice and are provided for general information purposes only ■
