High Lands, Hard Lessons: The Supreme Court and Divorce Tourism 

Published on 02 July, 2020 | Andrew Newbury

Thanks to the referendum vote in June 2016 in favour of ‘Brexit’, Britain now stands apart from the rest of Europe.

However, it’s not only in political terms that the country has adopted a different approach to its counterparts overseas.

For the best part of two decades, London has earned the reputation as the ‘divorce capital of the world’ for a series of high-profile and often big money settlements, mostly in favour of wives.

Perhaps unsurprisingly, other women – even foreign citizens – have sought to follow suit and have their divorces decided in England if, of course, they’re able to demonstrate a reason why they should be heard here.

Such a practice has become known as ‘forum shopping’: an attempt to have a case heard in a jurisdiction which someone believes is more likely to find in their favour.

In matters involving the division of matrimonial assets, it is now more commonly referred to as ‘divorce tourism’, something which has assumed particular interest because of a new judgement handed down by the UK Supreme Court.

Following a two-day hearing last December, five judges had deliberated on an appeal by Charles Villiers to prevent his former wife, Emma, claiming spousal maintenance through the English courts.

The couple, who had lived near Dumbarton, in Scotland, had separated after 18 years of marriage and were divorcing in Scotland.

Mr Villiers – who, as newspaper reports mentioned, is a relative of the Duchess of Cornwall – sought to ensure that the proceedings were heard north of the border.

It was the first cross-border case under European Union Maintenance Regulations, which were introduced in 2011, in respect of a dispute between England and Scotland as two separate legal states.

The Supreme Court has decided that Mrs Villiers should indeed be allowed to have any maintenance provision determined in London and not Glasgow or Edinburgh (https://www.supremecourt.uk/cases/docs/uksc-2018-0114-press-summary.pdf).

As I’ve been telling Jonathan Ames, the Times’ Legal Editor, the decision may well result in more women choosing to follow Mrs Villiers’ lead, due in no small part to the English courts having a rather more generous approach to maintenance than courts in other European countries (https://www.thetimes.co.uk/article/7806ae48-bb88-11ea-82eb-1588bf47a52f?shareToken=76f75d8356ee5450cbf231b31f54fd8a).

The judgement is significant because it advances the very specific point of maintenance for spouses.

English courts have always had the power to deal with cases in which the financial aspects of divorce might not have been dealt with fully or properly by courts overseas.

The Villiers’ case, however, illustrates how courts will now be able to look at whether to award maintenance even if other elements of a settlement, such as property or pensions, have been successfully dealt with.

Although that might seem a cause for concern for husbands and possible celebration for their former wives, we shouldn’t lose sight of the fact that the Family Court in England and Wales has increasingly sought to move away from the provision of lifetime maintenance.

Figures published recently by the Ministry of Justice reveal that the number of maintenance orders made by courts has, in fact, fallen by 14 per cent between 2012 and 2019 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2020).

Where possible, the courts try and ensure that there is effectively a clean break between spouses, bringing the financial dependence of a husband or wife on their former partners to an end as swiftly as possible.

That’s reflected by the fact that the number of such arrangements (known as ‘Lump Sum Orders’) increasing by six per cent between 2012 and 2018, even as the number of divorces during the same period fell by 23 per cent, according to the Office for National Statistics (ONS) (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2018).

In one notable case, it also saw Tracey Wright told that she should find a job rather than relying indefinitely on the levels of maintenance previously provided by her former husband (https://www.telegraph.co.uk/news/uknews/law-and-order/11429864/Divorced-wife-told-to-get-a-job-and-stop-living-off-her-ex.html).

Even though maintenance may, therefore, be less likely, it doesn’t necessarily mean that attempts to secure it will be less frequent, especially in the wake of the Supreme Court’s decision in the Villiers’ case and that, in itself, may well be enough to unnerve husbands.