‘Divorce Tourism’ Case In Two-Day Hearing

A husband will appeal to the Supreme Court today (9 December) for his wife’s claims for financial maintenance after their divorce to be heard in Scotland instead of England.

The legal question in the case is whether the EU Maintenance Regulation should apply as between England and other parts of the UK (such as Scotland) as if they were separate European Member States.

There are also questions over whether, if a divorce has been issued in one part of the UK, the financial elements of the divorce are a ‘related action’ which means they should be dealt with in the same country as the divorce.

Expert Opinion

“The consequences of the Supreme Court outcome could be significant due to the massive difference in maintenance provision between England and Scotland.

“In Scotland maintenance is generally limited to a maximum of three years with a clean break. If Mrs Villiers can get her financial case heard here as opposed to Scotland, she will potentially be much better off.

“The other notable point of course is Brexit. If we leave the EU with a deal on 31 January then it looks as though we'll continue to apply EU law until December 2020, following which the Maintenance Regulation will no longer apply and then similar cases to this will be racing against the clock until the laws change.

“London is considered the divorce capital of the world, but it remains to be seen what impact Brexit will have on that status.” Zahra Pabani - Partner

Mr and Mrs Villiers married in 1994 and lived in Scotland for almost all of their marriage. When they separated in 2012, Mrs Villiers moved with the couple’s child to London. Mrs Villiers filed for divorce in England in 2013, while Mr Villiers filed in Scotland in 2014. Shortly afterwards, he was declared bankrupt.

Mrs Villiers’ divorce petition was dismissed in 2015 with Mr Villier’s Scottish divorce Writ going ahead because they last lived together in Scotland. Mrs Villiers then made a financial order application to the English courts, seeking maintenance and for her legal costs to be paid. Mr Villiers applied to stay the proceedings.

At  first instance, the judge ruled Mrs Villiers’ financial applications could go ahead because Mr Villiers had not included a financial orders application in his Scottish divorce Writ. He was ordered to pay Mrs Villiers £2,500 interim maintenance and £3,000 a month for her legal costs. When Mr Villiers appealed to the Court of Appeal, they dismissed his appeal on all grounds and upheld the original order.

EU legislation allows either divorce party to make a claim for maintenance in the country where they are habitually resident, provided they have been living there for a certain period of time. It’s also important who applies first in time. The idea that a party can move to England after the marriage is over and seek an English maintenance order, even though England cannot hear the divorce, has been labelled forum shopping or ‘divorce tourism’.

The recent case of Potanin v Potanina, where the husband is worth an estimated $20bn, saw the High Court rule there had to be limits on when someone who has little or no other connection to the UK, can get a financial order from the English court. The couple had spent their married life in Russia and the wife moved to England after they separated. The wife’s application was dismissed and, subject to any appeal, she will have to make do with the $84m she was awarded in Russia.

Zahra continued: “It will be interesting to see whether the sentiment expressed by the court in the Potanin case will be mirrored in the Supreme Court. The technical legalities of the cases are different, but if the Supreme Court finds in favour of Mr Villiers, this could be seen as a hardening of the court’s attitude towards so-called ‘divorce tourism’.

“If Mrs Villiers is successful again, we can expect to see more claims for maintenance in England following a divorce elsewhere in the UK, at least for as long as we apply EU law.  After that, things are less certain, but it seems likely that for the financially weaker party in a divorce England will continue to be an attractive jurisdiction.”