The Scope Of Financial Relief In England After A Foreign Divorce Is Limited In A ‘Truly International Case’

Z v A [2012] EWCA 467 (Fam) and 1434 (Fam) considered the application of Part III of the Matrimonial and Family Proceedings Act 1984 ('the 1984 Act') which gives the English Court the power to make financial orders following an overseas divorce. This legislation was enacted to alleviate the adverse consequences of no, or inadequate, financial provision being made following a foreign divorce where the parties had substantial connections with England. Arguably, this case sees the law applied in a manner perhaps not anticipated by the legislators.

Z v A concerned a 5-year marriage of a couple who had married abroad and divorced under Sharia law. Both parties acknowledged that neither had any financial claims against the other. They originated from different countries but lived in London for a period of their marriage. The wife had significant connections with England, whereas the husband's connections were limited and he had no assets in England.

Both parties were wealthy in their own right: the husband with estimated wealth of £34m which had been largely built up during the marriage and the wife had estimated wealth of £7m and the support of a wealthy family. They had one young child.

After their divorce, the wife returned to England (via the US and Europe) where she initiated an application under the 1984 Act seeking a payment from the husband of £10m. She was successful in freezing £12m of the husband's assets in anticipation of her claim.

Whilst the husband acknowledged his pecuniary responsibility for his child, he argued that he should not pay the wife anything on the basis the divorce had taken place consensually and that they had agreed, orally, that she would have no financial claim.

The case was two-pronged. In the first decision (Z v A [2012] EWCA 467), the Court considered whether the leave granted for the wife's 1984 Act application should be overturned. The husband argued that there was an express oral pre-nuptial agreement between the parties that neither would make a claim against the other and that this constituted a 'knock out blow' preventing the wife's claim from continuing. He also argued that the wife had not disclosed the true extent of her assets.

The Judge found that the husband had not proved the existence of a clear express pre-nuptial agreement that knocked out the wife's claim. He held that the Court must be very satisfied with the evidence of an oral agreement for it to import the kind of draconian effect the...