Supreme Court Case Means Divorce Tourism May Continue With England’s Discretion Rules Popular With Financially Weaker Parties

A husband looking to have the finances of his divorce heard in Scotland rather than England has had his appeal dismissed in full by the Supreme Court.

The Supreme Court today (1 July) handed down its judgment, which concluded Mrs Villiers was entitled to bring her maintenance claim in the English courts as she was a resident in London at the time of her application.

Specialist divorce lawyers at Irwin Mitchell say the ruling will add to the debate around divorce tourism with English courts being popular with financially weaker parties.

Expert Opinion

“The Supreme Court has sent a clear message in this case – Mrs Villiers had a need, and that need should be met according to the law in England and Wales.

“I think this was a good decision from the Supreme Court. In England and Wales, we thrive on discretion and we have bespoke arguments for bespoke cases. In this instance, Mrs Villiers proved her need and has now been granted it; it won’t necessarily be the same case for others, but again those can be worked out based on what’s fair.

“There’s been a lot around ‘divorce tourism’ cases in the courts of late, and it’s possible this outcome will add to the debate around forum shopping in this country. Of course, Brexit might throw a spanner in the works but until the details are worked out, it’s likely financially weaker parties will continue to bring their divorces in front of English courts.” Zahra Pabani - Partner

The legal question in the case was 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.

The Supreme Court decided the Maintenance Regulation applies equally in interstate and intrastate cases (ie between UK countries). The principle of “forum non-coveniens” where the English court could decide the most appropriate jurisdiction wasn’t available because of the application of the Maintenance Regulation.

There were 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. The majority of the court found that they were not related actions, but two eminent family judges Lord Wilson and Lady Hale disagreed.

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 her Russian settlement remained in place.

Zahra continued: “The idea that a party can move to England after the marriage is over and want an English maintenance order, even though England didn’t hear the divorce, has been labelled forum shopping or ‘divorce tourism’.

“We’ve seen the courts decide in some cases that the person bringing a maintenance application doesn’t have a strong enough connection with this country to allow them to take advantage of England’s notoriously generous maintenance provisions.

“However in Villiers the Supreme Court pointed out that an important purpose of the Maintenance Regulation was to give those seeking maintenance greater protection and the choice of having their application heard somewhere convenient for them, because they tend to be the more financially vulnerable party.

“Mrs Villiers lives in England, and her connection to this country was enough to allow her to make her application here. In Scotland her claims for maintenance would have been extremely limited, but in England the court will assess her needs without any automatically imposed time limitation.”

Background

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.

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