Potanin: Claiming Financial Relief in England After a Foreign Divorce

We have two important judgments in early 2024 and Autumn 2025 first in the Supreme Court and now Court of Appeal. They concern the unusual but regularly used power of the English Court to revisit a divorce settlement given by a foreign court, when the foreign result is obviously unfair.

The Russian divorce of Mr and Mrs Potanin began in 2014, and 12 years later the parties are still litigating  a second divorce financial outcome in England. Wealthy spouses have deep pockets to test new legal points. Mr Potanin is one of Russia’s wealthiest oligarchs.

The English court can decide a second financial award under the relevant law (a 1984 piece of legislation –the Matrimonial and Family Proceedings Act) if it has jurisdiction, specifically when the foreign court has ruled on finances already. So it’s a second bite of the cherry. It is basically a residence test (the jurisdiction test), and the court must agree there is a substantial ground for bringing the application (the merits test). This is gate keeping or a filter of the merits to keep out bad claims. The English court door is likely to shut the door following an award that is not obviously unfair, or following bad litigation behaviour by the applicant, or to a spouse who does not have strong connecting ties with England.

The English court has found the merits test difficult. It is procedurally difficult (the Supreme Court decision tackles this) and also qualitatively difficult (the Court of Appeal decision tackles this).

The Supreme Court said, amongst other things, that the case can proceed if there is a “real prospect of success”. The court has said this is not as high a test as “good arguable case”. Your case must be “solid” to use a term from an earlier Supreme Court case. If you are confused by the difference between or meaning of those various phrases, you are not alone.

So the gate keeping filter is all important but it is hard to assess objectively what cases are deserving to get through. Hence all the case law.

What the Court of Appeal says the merits test means, in practice, and what older cases have said, is that the spouse wanting to bring a claim has to show (a) a real connection with England and Wales and (b) a clearly unfair award from the foreign court amounting to serious injustice. These tests makes matters slightly easier for a spouse seeking their second bite of the cherry here.

The courts have principally only deployed the power after court decisions from distant courts where a spouse has obviously got a raw deal – for instance Russian, Middle Eastern and African court decisions. Judges can see these as culturally (and geographically) distant and different courts.

What then of courts with whom we have closer legal cultural or geographic connection – the United States or our neighbours in continental Europe? Perhaps unfairly, spouses after divorce awards by a US court or a continental European court nearly always get rejected or don’t try at all because they don’t expect to succeed.

This might at first seem sensible or fair if these are fair courts which we are close to. But there are weak court disclosure regimes in some civil law courts - see France for instance. This can result in financial settlements, in my experience, which are grossly unfair when based on a very dishonest presentation by a wealthy spouse.

Should judges close the door to those cases? I would say not, and time will tell if more applications follow, after the Court of Appeal has made it slightly easier to bring claims.

William Healing, Partner

William is an international family lawyer with over 25 years’ experience. He is a dual French national and bilingual. His cases often have a French or European element.