Pensions: Home and away

| Family Law Journal | February 2019 #183

Bethany Davies highlights problems when dealing with overseas pensions or pensions in this jurisdiction that are subject to an overseas order

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Financial relief – foreign jurisdiction

| The Practical Lawyer |

Financial relief may be granted to parties who have separated in a foreign jurisdiction under Pt 3MPA 1984. Before making an order, the court must take into account the considerations under s16 MFPA 1984 relating to, for instance, the connections of the parties both with the country concerned and with England and Wales; the length of time that has elapsed since the date of divorce/legal separation and the availability of property in England and Wales.

Agbaje [2010] altered the preconditions required for a successful application under Pt 3:

  • Leave of the court must now be obtained. Leave will only be granted where it is considered there is substantial ground for making an application for an Order.
  • The court will only have jurisdiction to entertain a Pt 3 application in cases where specific preconditions relating to domicile are satisfied.
  • Where jurisdiction is secured by virtue only of the existence of matrimonial property in England and Wales, the court’s power is restricted to a lump sum order, or an order relating to the property itself.

In deciding Pt 3 cases, the principles of exceptionality, hardship, injustice and comity will, following Agbaje no longer be deciding factors. Agbaje v Akinnoye-Agbaje [2010] UKSC 13. Source: [2011] NLJ 29 July.