What is divorce tourism?
I’ve written here on numerous occasions about the phenomenon of ‘divorce tourism’, whereby a wife will seek a divorce settlement in this country, in the belief that the courts here will be more generous to her than the courts in her ‘home’ country.
Whether or not the courts here are indeed more generous towards wives than the courts in other countries, I could not say. However, it is certainly true that in recent years there has been a steady stream of ‘foreign’ wives taking in the sights that our courts have to offer (thankfully they usually avoid the more dilapidated venues in our court estate).
But does this mean that our courts are open to any foreign wife seeking a day in the RCJ?
Well, a recent case makes it clear that they are not.
A Russian wife in Queen Elizabeth’s court
The case is Potanin v Potanina, which you may guess involved a Russian wife seeking a divorce settlement from her former husband.
The relevant facts of the case were as follows.
The parties are both Russian nationals. They married in 1983 in Russia and have 3 children, all now grown up. They separated either in 2007, according to the husband, or 2013, according to the wife. Whatever, they were divorced in 2014. Throughout the marriage, they lived only in Russia.
Hmm, not much connection with this country, then.
Continuing our story, we are told that the family was not always wealthy, but that from around the mid-1990s the husband
“was able to take advantage of the extraordinary opportunities that existed at that time in Russia to amass a fortune.”
Indeed, according to the wife he took advantage to the tune of an eye-watering $20 billion.
The date of their separation was not the only thing upon which the parties could not agree. Somewhat surprisingly, they also could not agree upon how much the wife received in the Russian divorce settlement. The wife claimed it was $41.5 million, and the husband claimed it was $84 million. Either way, it was only a tiny fraction of $20 billion.
The wife then applied to the court here for a more generous settlement. The court granted her leave to do so, and the husband applied to have that leave set aside. The husband’s application fell to Mr Justice Cohen in the High Court to decide.
Wait, I hear you say. The wife received a Russian divorce settlement? Surely that is the end of the matter. What has this got to do with the courts of England and Wales?
Good question.
The answer is contained in Part III of the Matrimonial and Family Proceedings Act 1984, under which a spouse who was divorced in another country may apply to our courts for an order for ‘financial relief’, even if they have already received such relief from the court in the country where the divorce took place. Such applications may only be made with the leave of the court, which will only be granted if the court thinks it would be appropriate for the court here to grant financial relief. When considering this, the English court must consider a number of factors, including the connection which the parties have with England and Wales.
So what connection did the parties have here?
Let Mr Justice Cohen explain:
“It can be very shortly stated that [the husband] has no connection with England and Wales either during or after the marriage. Likewise, [the wife] had no significant, if any, connection during the marriage. Her first contact with England after the marital breakdown appears to have been to obtain advice from London divorce lawyers.”
Hmm again.
It did, however, get a little better. In 2014 the wife purchased a “small” flat in London. Mr Justice Cohen found that her connection with England and Wales was “both recent and modest.” On the other hand, the parties’ connection with Russia, the country where they were born, grew up, married, lived and divorced, was “infinitely greater.”
Taking advantage
I’m sure you can see which way this is going, so I’ll cut to the chase. Mr Justice Cohen concluded thus:
“I have come to the view that this is a classic example of a spouse whose background and married life was firmly fixed in her home country and who had no connection with England, whether by presence of the parties or their assets or business activities, seeking after the breakdown of the marriage to take advantage of what is a more generous approach to her claims than she has been able to achieve in her home country after the fullest possible use of its legal system. Mr Bishop [counsel for the husband] is right to say that if this claim is allowed to proceed then there is effectively no limit to divorce tourism.”
Accordingly, the wife’s application for leave was dismissed.
The wife has indicated her intention to appeal.
You can read the full judgment here.
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A very good result; see in particular Cohen J’s remarks about it being arrogant to assume that what the English court would order is necessarily right – especially when the wife is going to be rich on what the Russian court ordered. Just not as rich as she would like to be.
I hope that the wife was ordered to pay the husband’s costs. If they were summarily assessed she should be required to pay them into court as a condition of even seeking PTA.