What if Heather Mills had divorced abroad?

Divorce|Family Law|Stowe Family Law|March 20th 2008

Could she have had a second bite of the cherry?

Clearly, Heather Mills was distraught when she stood on the steps of the Royal Courts of Justice and ranted about her award, the judgment and her treatment at the hands of the English court.

There are those in her camp who argue that the judgment was an extraordinarily cruel dissection of her crude attempts to present her case as a litigant in person, against the man who is arguably the best matrimonial finance barrister in the country. Quite why Heather Mills chose such a course of action is a mystery. But choose it she did, notwithstanding the fact that at present, a major criticism of English law in this area is that no-one can say with absolute certainty what the parameters are for settlements in short marriage, “big money” cases. There are so many possibilities. And so I wondered if, despite all the vitriol aimed at Heather, she has actually been an innocent victim of very unclear law?

When I read the judgment and noticed that the parties owned homes abroad, I wondered hypothetically what her position might have been if the facts had changed a little. What if Sir Paul McCartney, instead of being a homegrown superstar, had been a superstar in a foreign country?

If he had divorced her in that country in order to protect his financial position, knowing that the law of that country was much more favourable to him than elsewhere, and she had received only the tiniest fraction of his wealth, could she have come back to England and tried again? Could the courts – the same courts that made this week’s judgment – allowed her a second bite of the cherry and awarded her more?

Part III of the Matrimonial and Family Proceedings Act 1984 was brought into effect because it was recognised that financial hardship affected numerous people (mainly women) who had been divorced in foreign jurisdictions – even if they lived in England. In some of their cases, marriages had been ended abroad without any financial settlements at all, or settlements that were manifestly unfair.

Assuming that the criteria of domicile or habitual residence (to which I have referred in other posts) or ownership of a house in England and Wales can be demonstrated, then a spouse divorced overseas can apply to our English Court for a financial settlement. Provided the spouse has not remarried, he/she has recourse to the same remedies as a spouse divorcing in England.

So far, so good! Heather would qualify.

The court’s permission is still required, in order to proceed. This can be obtained “ex parte”, without the husband or his lawyers present. This, too, would give Heather Mills an advantage!

However, the court will not grant leave unless it considers that there is substantial prospect of success. The burden of demonstrating this success would fall on Heather. She would have to make a full presentation of all the facts as she knew them. However, in one case – W v W, heard in 1989 – the wife was still allowed to proceed in relation to certain properties, even though she had initially failed to make full and frank disclosure.

It is important to note that the English courts discourage “forum shopping”, which is the practice of going to another court simply because of dissatisfaction with the outcome in the first court. That would be an argument against any bid by Heather Mills. In one case, involving an award in New York in 1989, the wife objected and tried again in England – but her application for leave was refused. In another case, involving a French award in 1994, the courts held that orders of a friendly neighbouring jurisdiction should be respected.

Even so, modern jurisprudence does allow for leave to be granted. In a recent case, Ella v Ella (2007), the wife objected to Israeli jurisdiction for the divorce, but the Court of Appeal ordered that the case should be heard in Israel. However, they expressly mentioned the possibility of an subsequent application under Part III, if the wife failed to obtain an appropriately fair order in Israel. Also in 2007, the court upheld a decision to proceed even though a Nigerian court had already made an order.

I believe the courts would look at the facts of the case in the round. The case of Moore v Moore (2007) involved spectacular wealth. The courts gave Mrs. Moore permission to proceed even though the husband thought he had stolen a march on her by issuing divorce proceedings in Spain. I have referred to this type of trans-European jurisdictional race in an earlier post.

Mr. Moore had not applied for a financial settlement in Spain, so the wife swiftly applied ex parte in England using Part III. She had vehemently objected to Spanish jurisdiction. The English court could easily have declined jurisdiction and left the case in Spain, given we are all members of the EU and the “first out of the starting blocks” rule applies (see earlier post). Favouring Mrs Moore, however, it did not. Notwithstanding an appeal to the Court of Appeal, her application was allowed to proceed. Ironically the Spanish courts would have applied English law, as both parties were English nationals. So why did the Court see fit to find in favour of Mrs. Moore, exercising a kindly, patriarchal discretion in her own case – but refusing to, in others?

To put it hypothetically, consider a woman divorcing a hugely wealthy but foreign superstar. Seemingly because of the astronomical costs involved, she had been unrepresented in a foreign court. As a result she had been faced with a low offer, with little choice but to accept it or to litigate on her own. She had been largely unaware of the law, unaware of the technical process involved and unaware of how to argue for discretion in her favour, all the more so given that the law itself is so unclear in terms of the parameters of the award. She had been hopelessly unable to deal with cross-examining on complex financial disclosure, and hopelessly unable to cross-examine her husband or even present her own case with any merit.

Could such a woman come to this country and ask the court to reconsider her financial position? Having sustained a mauling as severe as Heather Mills undoubtedly did, would she have any serious arguments to put before an English court for a “rethink”?

I believe so. The law in this area is so unclear, so as to give rise to so many different interpretations of needs. In Miller v  Miller (2005), the House of Lords awarded Mrs Miller some £5 million out of £32 million for a childless marriage of two years’ duration. What gave her that entitlement to such a large percentage and Heather Mills to a tiny fraction?

As ridiculously exaggerated as I think Heather Mills’ needs were, I personally doubt that they would have been so minutely and painfully dissected by an independent English court, looking at the position completely afresh following an earlier, foreign decision. I doubt that such a tight rein would have been applied to her reasonable needs, given the fabulous standard of living of the parties, the welfare of their child, Sir Paul’s gargantuan wealth and the Miller decision. I believe that in these circumstances, Heather Mills’ award would have been at the top of the bracket – whatever that bracket actually is – and above all, would have given her back some of her dignity.

And it would not surprise me in the least if lawyers in this country and other countries, standing back and forming an objective view of Heather Mills’ fate, agreed.

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