The UK is a country which is home to many immigrants from across the world. Like a lot of immigrants to the UK today, the individuals in this case decided to settle after coming here to study, meeting at work and eventually getting married. However, the situation is complicated by the fact that the couple got married in China and later got divorced.
This raises the question of what happens with divorce procedure in this situation, especially given the number of assets involved. For instance, should the couple initiate divorce proceedings in the UK? Or return to China for divorce where they married? Keep reading to find out what happened.
The name of this case, “AW v AH”, refers to the unnamed husband and wife who sought to divorce each other. They first came to the UK to study and later settled there. Unfortunately, AW was subjected to domestic violence many times by her husband during their marriage.
In desperation, AW felt she had no choice but to apply for a divorce in the British court and get a financial arrangement that was beneficial to herself. However, because the British divorce court had not issued a decree nisi (provisional decree of divorce), the divorce was not properly handled. The husband, AH, obtained divorce approval in China. The English court had to revoke their divorce application, and the original financial judgment was invalidated.
Background of case
In 2003, AH came to the UK to study at the University of East Anglia. After graduation, AH successfully stayed in the UK and settled in East Anglia. In 2014, he bought a local property worth 330,000 pounds. He also started some small businesses in England.
In 2017, AW also came to the UK to study. During her studies, AW was eager to experience working life straight away, and started applying for jobs while she was still at university. She later ended up working as a part-time assistant in a company. Coincidentally, her future husband, AH also happened to work for this company. In 2017, AH asked AW to move in with him, and the two began to live together. In 2018, they returned to China to get married, and then returned to the UK. AW gave birth to a son in 2019.
It is worth bearing in mind that AH is ten years older than AW, more financially stable than her, and bore the brunt of the financial expenses during the relationship as this will be relevant later on.
During their marriage, the assets in their marriage pool increased, and the main economic contribution came from AH. In 2018, AH purchased a property in his own name and rented it out to students. They later also purchased a larger family home which they moved in to.
Domestic violence and downfall of the marriage
Sadly, their marriage does not seem to have been a happy one.
According to AW’s testimony, AH has a bad temper and often physically abused her during the relationship. The first domestic violence occurred in 2019, when AH attacked her at night. In February 2020, the domestic violence escalated and AW was beaten harder by her husband. Due to this second serious act of domestic violence, she left the family home and moved into temporary housing provided by the government. Since then, she has been living in a house provided by the housing association and does not dare to go home.
In February 2020, the two officially separated. At the same time, she also obtained a restraining order to prevent AH from approaching her. Under these circumstances, AH left the UK and returned to live in China.
In May 2020, AH filed divorce proceedings in China. In the same month, AW filed for divorce in the UK. On July 21, AW issued a ‘Form A’ seeking financial relief from the court. In June 2020, AH personally went through the divorce and financial relief procedures back in China.
On July 21, 2020, AW issued an application for a financial order in relation to the UK divorce proceedings, hoping to obtain fair assets. The court decided that the first meeting would be held on November 18, 2020. However, AH failed to attend. The application had a final hearing on October 12, 2021. AH neither provided the court with his financial disclosures, nor attended.
According to the evidence provided by AW, AH sold the property they owned. These assets include properties purchased during their marriage: Property A (the family home before October 2019), Property B (the student rental property) and Property C (the family home the couple last moved into). In total, the combined selling value of the properties was £512,000.
Aftermath of the separation
Since the divorce, AW’s financial situation has been poor and she has been in receipt of credit and child benefits, as well as housing benefits.
The court held that the assets involved in this case mainly came from AH, and the two had only been married for more than 3 years. However, considering AW’s housing needs and the welfare of the children, the court decided that she should receive a one-off fee of £300,000 and the transfer of one of the properties from AH to his ex-wife, AW.
Furthermore, the Judge held that AH’s wilful abstention from the proceedings and his failure to give any financial disclosures was a contempt of court.
Complications of divorce proceedings
However, the process of going through the divorce process in the UK is a bit complicated. From applying for divorce to actually rescinding the legal relationship, there needs to be “customs clearance” in the middle. After one party files an application for divorce to the court, the court needs to issue an interim divorce order or conditional order (new marriage law after 2022).
This order serves as a formal confirmation that you have the right to a divorce. The judge can then make a binding order on the property arrangements for the divorce. However, this doesn’t really dissolve the legal relationship.
Once a temporary divorce order or conditional order has been successfully obtained, the couple must wait at least six weeks and one day before applying for a Decree Absolute or a Final Order. Before the introduction of the new marriage law in 2022, known as “no fault divorce”, the “absolute decree” was the decisive decree of divorce, which will completely dissolve the marriage of both parties. Once approved, the couple is truly divorced.
At this stage, AH and AW were stuck at the point of “temporary divorce order”. Since the court has not issued an interim divorce order for AW’s case, the financial judgment awarded by the judge to AW could not be stamped. Usually, the property court’s financial settlement plan cannot be approved until the divorce court issues an interim order.
On March 29, 2022, AH divorced AW in China. Seeing as divorce in China is relatively simple, AH got the divorce approval before the trial in the British court began. However, getting the divorce approval in China means that the British court could not announce the divorce judgment. The British Family Law Divorce Tribunal therefore directly cancelled AW’s divorce application. As a result, AW’s previous financial claims in the English court and any financial rulings made by the Property Tribunal were made invalid.
Since almost all of AH’s property is in the UK, in AH’s Chinese lawsuit, the Chinese judge suggested that after the divorce the two parties could file another lawsuit on the marital property outside China to deal with property disputes. AW felt helpless in her situation, so applied to the court for financial compensation for overseas divorce (the provisions of Part III of the Marriage and Family Litigation Act 1984).
How does divorce work in the UK courts?
Under the laws of England and Wales, if you divorce overseas, you can, in certain circumstances, make a claim for financial relief in the courts of England and Wales. In many cases, not all countries allow divorced couples to obtain a reasonable financial arrangement. Sometimes, one spouse may not receive financial compensation in a divorce, or the compensation may be entirely insufficient. As a result of this, Part III of the Matrimonial and Family Proceedings Act 1984, the legislation for financial claims after overseas divorce, was created to help remedy these situations.
Even if divorced couples obtain financial results in foreign courts, they can apply for financial orders under the Act after a foreign divorce. The courts of England and Wales will judge whether the parties are eligible to apply for economic relief in the UK and make a reasonable financial order according to the relevant rules.
On 24 May 2022, the judge granted AW’s application under Part III of the Matrimonial and Family Proceedings Act 1984 relating to “financial claims following an overseas divorce”, as the judge considered that the parties had strong ties to England and Wales , and there were currently no conflicting property judgments from Chinese courts. The court also directed that previous financial order files be linked to new cases for financial relief following overseas divorce filings. The judge also noted in bold that AH must be present at that hearing and that if he did not, the court may make a final order in his absence.
In the Financial Relief Case After an Overseas Divorce, AW asked the court to enforce the judge’s judgment that she should receive a lump sum of £300,000. AW’s application was successful. At the hearing on 11 August 2022, AW received a one-time payment of £300,000 and ordered the sale of AH’s property to realize the payment of the arrears.
Our thoughts
This story is a case worth thinking about, even though it can be said that AW’s application was successful in the end. However, not only did the case dragged on for up to two years, but AW may have incurred high legal fees as a result.
Xinlei Zhang, a Family Law Solicitor at Lisa’s Law, points out that although the divorce procedure and the division of property are different procedures, the property court needs the divorce court to agree to the divorce judgment before it can make an effective judgment on the division of property. With AW, she became stuck when it came to the divorce step.
We suggest that once the divorce is initiated in the courts of England or Wales, if the spouse does not cooperate, evidence can be collected, such as through messaging apps or any email information. In addition to this, private investigators can be hired to go to the other party’s address to serve the court’s divorce papers. This way, you are able to come to the court to apply for exemption from the other party’s reply in order to continue the divorce process.
In addition, if you have already started divorce proceedings in the UK, once you find that your ex-partner has also applied in other countries you would be better off filing with the local court immediately. Generally, as long as you start the divorce process in one place (country), the divorce judges in other countries are in principle reluctant to intervene.
Furthermore, regarding marital property matters, it is generally recommended to file a property lawsuit with the court where the marital property is located. For example, in this case, even if the other party fails to cooperate at all, the British court can still enter the judgment in absentia and dispose of the British property. This cannot be achieved by Chinese courts. This case acts as a reminder that even if AH did not participate in the proceedings at all and refused to disclose his property, he still faced possible legal punishment from the court.
If you have similar needs, you can contact Lisa Law Firm further, and our family law lawyers will be able to provide you with advice.
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