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The Matrimonial and Family Proceedings Act after Agbaje

Date:1 JUN 2011

William Healing

Partner, Woodford Stauffer Solicitors

A party to a foreign divorce and foreign financial settlement can commence fresh financial proceedings in England and Wales, under the Matrimonial and Family Proceedings Act 1984 Part III. To start with, the applicant must seek the court's permission, at a without notice hearing, to bring the claim. Section 13 provides that there must be a ‘substantial ground' for bringing the application. The Supreme Court decision in Agbaje v Agbaje [2010] UKSC 13, [2010] 1 FLR 1813 gives guidance on what is meant by substantial ground.

There have now been two important Court of Appeal judgments in close succession on s 13: Traversa v Freddi [2011] EWCA Civ 81, [2011] 2 FLR (forthcoming) and Schofield v Schofield [2011] EWCA Civ 174, [2011] 2 FLR (forthcoming) judgments being given on 2 February and 14 February 2011 respectively. The cases are useful and important for the following reasons. Traversa follows the Agbaje decision in deciding what will be a ‘substantial ground', as does Schofield. In doing so, the Court of Appeal rejects a gloss on the substantial ground test found in an early post Agbaje case: Mostyn J's decision in CG v IF (MFPA 1984 Part III: Lugano Convention) [2010] EWHC 1062 (Fam), [2010] 2 FLR 1790 where judgment was given in May 2010.

Additionally, Traversa contains helpful court guidance on other arguments that the respondent may deploy to attempt to defeat a claim in this cross-border environment. Finally, Schofield deals with practical cross-border pension sharing issues. At a practical level these issues are most important and likely to affect many expatriate couples in international divorces. This is explored below.

To read the rest of this article, see June [2011] Family Law journal.

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