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12 JUL 2010

David Hodson on International Family Law: The international pensions black hole

David HodsonThe Supreme Court decision in Agbaje (2010) UKSC 13 created excellent fairness and justice opportunities for international families to seek some financial provision here after inadequate provision from a foreign divorce. Nevertheless it highlighted the significant shortcoming where many international families find they cannot obtain orders in respect of English pensions. This is because of the restrictive jurisdictional basis.

Part III of the Matrimonial and Family Proceedings Act 1984 allows jurisdiction on the pre-Brussels II grounds of sole domicile, 12 months habitual residence or an interest in a matrimonial home here. The consequence is that there are now many international families around the world obtaining divorces abroad and having an English pension yet without a sufficient connection/jurisdiction with England and Wales to seek a Part III order. For these families, the pension falls into a “black hole” and cannot be touched by the foreign divorce court. English pension companies will only make a pension sharing order on the basis of a local English order.

These families are two categories. First, couples who have lived throughout much of their lives in England, probably English nationals but who have perhaps retired abroad or maybe working long-term abroad, so that they have neither residency nor domicile. Yet they have a substantial English pension. Secondly, couples from abroad who have worked in England for a number of years, perhaps a foreign job posting, and in that time acquired an English pension. They also have no ongoing domicile or residency.

Many families fall into these categories. When they get divorced abroad, the divorce court may make orders in respect of English pensions only subsequently to find out that England has no power/jurisdiction to make orders for enforcement purposes. They are very disappointed and frustrated.

There is a simple statutory solution. Extend the jurisdiction for Part III to include a UK pension, on the basis that the court's powers would be limited to the extent of that pension. This proposal was made by the Centre for Social Justice and other organisations. It has been apparently sympathetically received by past governments. It does not need a year-long Family Law Review! It is only anathema from previous governments in dealing with the family law which has prevented its introduction. It is much needed and should be quickly introduced.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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