Financial Relief after an Overseas Divorce – A Second Bite of the Cherry!

Financial Relief after an Overseas Divorce – A Second Bite of the Cherry!

Just last week judgement was delivered in a case that has been rumbling on for many years in the High Court, the Court of Appeal and the Supreme Court. My last blog in this case followed the Supreme Court decision reported as Potanina v Potanin [2024] UKSC 3. As I (David Allison) said then:

“The case dealt with the narrow point about whether, on an application for a financial remedy (claim) after a foreign divorce, a court should be able to set aside permission granted to bring a claim that is heard without notice to the respondent. Thankfully, the majority of judges in the Supreme Court decided that it should.

It is well known that the family court in England & Wales gives the financially weaker divorcing party more than they might expect to receive in almost every other country. As a result of this, securing divorce jurisdiction in England & Wales for the spouses of the super-rich has become the goal of many.

What is less well known is that if a divorce takes place abroad and the claimant spouse is unhappy with their award, they can potentially still bring a claim in England & Wales provided they have been habitually resident here for at least 12 months. Claims are made under Part III of the Matrimonial and Family Proceedings Act 1984.

There is an initial hurdle to making such a claim that requires the applicant to secure court permission. The applicant must demonstrate that they have a substantial ground for making an application”.

The latest decision reported as Potanina v Potanin [2025] EWCA Civ 1136 (4 September 2025) focuses on the threshold test for permission to bring the substantive application for relief and arguably makes it easier for spouses of the super-rich to move to England & Wales after a disappointing result elsewhere to have “a second bite at the cherry” here.

What are the facts of the case in Potanina v Potanin?

The parties were Russian nationals who divorced in Russia. They were in their 60’s having been married for over 30 years and had three adult children. The husband had estimated wealth of $20 billion, mainly held through trusts and companies. The wife received half the assets held in the parties’ names (less than 1% of the total as much was held in offshore companies and in trust). In 2014, the wife obtained a UK investor visa, bought property in London and, by 2016, became habitually resident in England.

What is the history of Litigation in  Potanina v Potanin?

In 2018, the wife initiated proceedings for financial relief after an overseas divorce after securing permission without notice to the husband.  The husband then applied to set aside the permission on the basis that, he said the wife had misled the court. The High Court agreed with the husband and set aside the earlier permission.  At the same time it dismissed the wife’s renewed application for permission.

The wife successfully appealed to the Court of Appeal arguing that the judge was wrong to set aside permission.  As the Court of Appeal agreed with the wife it did not consider the substantive application.  The Court of Appeal said that the law only allowed the court to reconsider permission if two stringent conditions were met:

• The first was that there is a compelling reason to do so and in practice only where a decisive authority was overlooked, or the court had been misled.
• The second condition was that, unless the applicant can demonstrate a “knock out blow”, the set aside application should be adjourned and heard with the substantive application.

As we know the husband successfully appealed that decision to the Supreme Court.

What are the issues in the Appeal Potanina v Potanin [2025] EWCA Civ 1136 (4 September 2025)?

What the previous decisions did not deal with is the wife’s second application for permission and therefore her appeal against the High Court Judge’s refusal of that second application. It was this issue under appeal here.

The Court of Appeal concluded that the High Court judge was wrong to dismiss the second application for permission.  It was satisfied that the wife had demonstrated that she had a substantial ground for making the application and indeed granted permission afresh sending the case back to the High Court for determination. The Court of Appeal found that the High Court judge was wrong to:

1. Effectively ignore the injustice that the wife suffered because the Russian court only considered assets held in the names of the couple and not other assets owned beneficially;
2. Find that the wife’s connection to England & Wales was “recent and modest” having used the term “divorce tourism” to describe that connection; and
3. Take into account the wife’s visit to an English family lawyer in 2014 and her reluctance to disclose the attendance note of that meeting

Will the English family Courts top up a financial award made in another divorce jurisdiction?

Whilst the Court of Appeal reiterated previous authority that these claims should not be used to secure a top-up of a foreign award which it said “would not be appropriate” it is difficult to see this case as much else. This is not to criticise the wife who clearly had suffered injustice, at least in English terms, and who had rightly used the system at her disposal to right that particular wrong.

This case may encourage other such spouses to take advice in England if they suffer an injustice in their divorce and to consider what they need to do to avail themselves of the more generous awards made in England.

The sooner that expert English advice is sought, the better. At FLiP we regularly advise spouses considering their jurisdiction options and whilst securing divorce jurisdiction may be the best option, where that is not possible, planning for the possibility of a claim in England & Wales for financial relief after an overseas divorce is very likely to be worthwhile.

David Allison and Elizabeth Hicks are fellows of the International Academy of Family Lawyers (IAFL) and they. along with other members of the team, regularly advise on these issues.