A case of divorce tourism
I have written here often on the subject of ‘divorce tourism’, whereby a party to a divorce will seek to have the case dealt with by the courts of the country in which they believe they will obtain the most favourable result. Only last month I wrote about the Potanin v Potanina case, in which Mr Justice Cohen found that the wife did not have a sufficient connection with this country for her financial relief claim to be heard here.
Now (i.e. on Monday and Tuesday of this week) the Supreme Court is considering another divorce tourism case, Villiers v Villiers. Readers may, of course, recognise that illustrious surname – as noted by Wikipedia, the Villiers family is one of this country’s preeminent aristocratic families. Indeed, the husband in the case, Charles Villiers, is apparently a distant relative of the Duchess of Cornwall. Not that that illustrious pedigree has any direct bearing upon the case.
English and Scottish proceedings
The relevant facts of the case are as follows. The parties were married in 1994. They moved to Scotland the following year and lived there throughout their married life. They have one child, who is now grown up. The marriage broke down and they separated in 2012 when the wife left the former matrimonial home and moved to England, where she remains.
In July 2013 the wife issued a divorce petition in England. In October 2014 the husband indicated that he contested the jurisdiction of the English court to deal with the divorce, and issued a writ of divorce himself in Scotland. The writ did not include any claim for a financial order. In January 2015 the wife’s English petition was dismissed with her consent, in favour of the husband’s writ of divorce in Scotland.
At this point, I should point out that the English courts are arguably more favourable towards wives when it comes to divorce settlements. For example, I understand that maintenance awards (which of course are mostly sought by wives) are usually limited to three years duration in Scotland, whereas in England they can last for life.
The wife did, however, continue to pursue a legal remedy in England. She applied to the English court for a maintenance order. Again, the husband challenged the jurisdiction of the English court, but the English court held that it did have jurisdiction to deal with the application, and made an order that the husband pay to the wife £2,500 per month in interim maintenance, as well as £3,000 per month for legal funding.
The husband appealed, to the Court of Appeal. The Court of Appeal dismissed the appeal, and therefore the English court retained jurisdiction to deal with the wife’s maintenance application.
As indicated, the husband appealed again, to the Supreme Court. The Supreme Court, comprising Lady Hale, Lord Kerr, Lord Wilson, Lady Black, and Lord Sales is hearing the appeal this week.
I won’t go into the technical details of the issues that the Supreme Court has to deal with (jurisdiction can be a horrendously complex subject), but the case concerns the application of a 2011 EU Regulation to jurisdictional disputes within the United Kingdom. The Regulation states that: “Where related actions are pending in the courts of the different Member States or different parts of the United Kingdom, any court other than the court first seised may stay its proceedings.” The question (or at least one of the questions), therefore, is: are the Scottish divorce proceedings and the English maintenance proceedings ‘related actions’ for the purposes of the Regulation?
The conclusion of the Court of Appeal was that they were not related actions. Lady Justice King stated:
“In the present case the divorce proceedings in Scotland relate only to the status of the parties: the parties are currently married, and the action is intended to result in a divorce and the accompanying change of status. There is no application for aliment/maintenance or any other form of financial relief made by either party. The fact that there could be does not lead to actions which are otherwise unrelated becoming related.”
We will have to see whether the Supreme Court agrees.
You can find the Court of Appeal judgment here.
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