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Divorce Shopping: Choosing Your Divorce Forum

Divorce Shopping: Choosing Your Divorce Forum

The Villiers case highlights that divorce forum shopping can take place between any two countries, it doesn’t have to be a choice of the English court or a far off destination such as Pakistan, India or the Philippines.

You may think that divorce solicitors are joking when they refer to ‘’divorce shopping’’ but international divorce solicitors will tell you that choosing the right country to divorce (referred to as divorce forum or shopping) is one of the first things that a specialist divorce solicitor with experience of divorce and international families will consider. Failure to do so could cost a husband or wife millions when it comes to their financial settlement. In this blog we look at a recently reported case on the importance and prevalence of divorce shopping.

London divorce solicitors

If you need help and advice on your separation, divorce, financial settlement  or choice of divorce forum then the friendly and approachable London divorce team at OTS Solicitors can help you. Call us on 0203 959 9123 or click here. Appointments are available through video conferencing, Skype or by telephone appointment.

The Villiers case

The Villiers case highlights that divorce forum shopping can take place between any two countries, it doesn’t have to be a choice of the English court or a far off destination such as Pakistan, India or the Philippines.

Charles Villiers asked the English Supreme Court to decide that any financial claims between himself and his wife, Emma, should be heard in Scotland, where he started divorce proceedings. His wife wanted her maintenance proceedings to take place in England.

Why does divorce and financial settlement jurisdiction matter when you are talking about a divorce and financial settlement taking place in two countries that form part of the UK and where there are no physical barriers? The answer lies in the two countries different approach to financial settlements on divorce, and in particular high net worth divorce and spousal maintenance.

Mr Villiers apparently labelled his wife's actions as ‘'divorce tourism'’, a new take on divorce shopping. However, the Supreme Court has ruled against him this week and therefore the financial court proceedings for spousal maintenance will take place in England. 

The background to the case is that Charles Villiers filed for divorce from his wife Emma in Scotland in 2014. During the marriage the couple lived in a family home near Dumbarton in Scotland. After the separation Emma Villiers moved to London. In 2015 she made an application in England under section 27 of the Matrimonial Causes Act 1973 for spousal maintenance. The court ruled that she was habitually resident in England at the time of her application. Mr Villiers appealed the jurisdiction decision on spousal maintenance saying that if the divorce was taking place in Scotland then so should all the financial and other proceedings relating to the marriage. This week the Supreme Court ruled by a majority of three to two that Emma Villiers could pursue her spousal maintenance claim in England.

Divorce solicitors are the first to acknowledge that England and Scotland have very different approaches to financial provision and in particular spousal maintenance.

Charles Villiers argued that the English court did not have jurisdiction to deal with his wife's maintenance application as the divorce proceedings were issued in Scotland. That stance was likely taken by him because the family court in Scotland would have limited spousal maintenance to his wife to a maximum of three years. In England the court has the discretion to make a life time award of spousal maintenance so spousal maintenance could potentially be ordered to be paid until the death of Emma Villiers or her remarriage.

To put the contested court jurisdiction case into financial context, Emma Villiers is currently receiving interim spousal maintenance payments of £5,500 per month from her husband but she is apparently seeking an order for spousal maintenance of nearer £10,000 per month. The difference in the overall cost of spousal maintenance payments, at either £5,500 or £10,000 per month, for three years or potentially for the duration of the life of sixty one year old Emma Villiers explains why the case was fought to the Supreme Court on the issue of jurisdiction and why the case is of interest to divorce solicitors.

The Supreme Court decided that the English court has jurisdiction to hear the wife's spousal maintenance claims because, in the view of Lord Sales, the husband’s divorce proceedings in Scotland are not a ‘‘related action’’ within article 13 of the Maintenance Regulation.

Lord Sales said:

"The divorce proceedings in Scotland do not qualify as proceedings which are related to the wife's maintenance claim in England. Therefore there is no basis on which the English courts could refuse to hear Mrs Villiers' claim. Mrs Villiers was entitled to bring her claim for maintenance in England."

"The wife's claim is not predicated on the result of the proceeding in Scotland, so there is no requirement that the two proceedings be heard and determined together to avoid the risk of irreconcilable judgments. An award of maintenance to the wife is in no way incapable of being reconciled with an order for divorce issued by the Scottish court."

The decision may give the green light to a husband or wife starting divorce proceedings in one country, such as Scotland, while maintenance and decisions on assets are made by a court in another country. England is often a favoured country for financial proceedings  as it is known for its more generous financial provision to the economically weaker spouse than the financial provision awarded in many other countries. 

As divorce and financial settlement court jurisdiction is a very complicated topic it is best to take early legal advice from a specialist divorce and financial settlement solicitor to make sure that you know what your best financial settlement options are so you can make informed choices.

London divorce solicitors

If you are part of an international family or there are potential divorce and financial settlement jurisdiction options then it is best to take legal advice from the experts. With an international client base the divorce and financial settlement team at London based OTS Solicitors can help you.

For expert advice on your divorce and financial settlement options call OTS Solicitors on 0203 959 9123 to discuss how we can help you. Alternatively, to complete our online enquiry form, click here. Appointments are available through video conferencing, Skype or by telephone appointment. 

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