The divorce capital of the world – an “untrammelled licence” to go forum-shopping?
It was reported in 2012 that of the divorce cases heard by English courts involving huge sums of money, around half involved international couples. For many, this stems from the belief that English courts provide favourable treatment to the financially weaker party compared with other jurisdictions, with non-marital assets like inheritance considered in the final settlement.
The landmark divorce case of White v White provided the sharing principle, which means that at the end of the marriage the presumption is that each party is entitled to an equal share of the assets, unless there is a good reason to the contrary.
In the recent case of Villiers v Villiers [2020] UKSC 30, Mr Villiers filed for divorce in Scotland with no prayer for any financial order. Since their separation, his wife had moved to England where she was granted an application for maintenance, based on his failure to make reasonable provision under section 27 of the Matrimonial Causes Act 1973. The Supreme Court dismissed his appeal.
The case is of particular significance as in England maintenance can be made payable for any term up to the joint lives of the parties, whereas in Scotland maintenance payments can be fixed for only 3 years.
Lord Wilson dissenting stated that the decision “will be the untrammelled licence given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of her case”.
Often international couples with residences in multiple countries are able to choose where they wish to get divorced. However, it may be determined by the party that files first.
An English court will be deemed to have jurisdiction in relation to the divorce under Article 3 of the Brussels II Revised, where any of the following apply:
- The spouses are habitually resident.
- The spouses were last habitually resident, and one of them still resides there.
- The respondent is habitually resident.
- In the event of a joint application, either of the spouses is habitually resident.
- The applicant is habitually resident if s/he resided there for at least one year immediately before the application was made.
- The applicant is habitually resident if s/he resided there for at least six months immediately before the application was made is either a national of the member state in question or, in the case of the UK and Ireland, has his domicile there.
- Both spouses are nationals, or in the case of UK and Ireland, both spouses are domiciled.
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