M v L

An application for financial relief after an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984 involves a threshold question followed, if permission is appropriate, by consideration of the substantive financial factors. A very long delay does not by itself defeat the application. The court must assess the delay in the context of the parties’ arrangements and any resulting prejudice. An informal maintenance arrangement recorded in a foreign divorce order does not necessarily amount to a final clean-break agreement, particularly where there was no proper disclosure, legal advice or clear evidence of its effect. Where continuing dependency, need, contribution and the former husband’s means justify relief, the court may make limited capital and income provision while preserving a clean break.

The wife and husband separated after a short marriage and were divorced in South Africa in 1973. The wife had received voluntary payments and housing provision for many years. Following the cessation of payments, she applied under Part III of the Matrimonial and Family Proceedings Act 1984 for financial relief, including transfer of the home, capital for repairs and continuing income.

Leave to apply had been granted by Hogg J. The principal issues were whether the application should pass the statutory threshold despite the thirty-year delay and whether the 1973 arrangements constituted a full and final clean break.

The application was allowed and financial relief was granted.

1. Part III involves a two-stage process. The court must first decide whether, in all the circumstances, it would be appropriate for an order to be made, having regard to the matters specified in section 16 of the Matrimonial and Family Proceedings Act 1984. The threshold is intended to prevent unmeritorious applications and abuse of the jurisdiction, while relieving hardship arising from inadequate relief in the foreign jurisdiction.
2. The thirty-year delay did not defeat the application. Delay had to be assessed in context. The wife had relied on continuing voluntary support, and the husband had suffered no financial prejudice, although the history was emotionally difficult to revisit.
3. The informal arrangements recorded in the South African order did not constitute an effective clean-break agreement under the principles in Edgar v Edgar 1980 1 WLR 1410. There had been no clear agreement dealing with the wife’s own maintenance, no disclosure of means and no legal advice. The application was therefore not an impermissible second claim following a proper foreign determination.
4. Once the threshold was passed, sections 17 and 18 brought the application, in substance, within the ordinary ancillary-relief framework. The court considered the factors in section 25 of the Matrimonial Causes 1973 Act, including resources, needs, earning capacity, the short marriage, the wife’s contribution as the children’s carer and the husband’s means.
5. Fairness required limited provision. The wife’s continuing dependency, present need, contribution and the husband’s ability to pay justified relief, but a division of capital appropriate to a modern long marriage would have been unfair. The existing statutory tenancy was preserved. The wife was given an entitlement to 50 per cent of the net sale proceeds if the flat was sold, £30,000 for works, and a lump sum of £150,000 representing capitalised income provision. The order was intended to achieve a clean break.

This was a first-instance decision. Leave to apply under Part III had previously been granted by Hogg J on 9 October 2001.