Posted on Monday December 16, 2019
By Jim Richards, Associate Solicitor at Mackrell.
The Supreme Court has opened an appeal in the influential case of Villiers. This case relates to a couple who started divorce proceedings in Scotland, but unusually, at the same time have ongoing proceedings for financial orders in the courts in England. This has given rise to the subject of the appeal but also wider consideration of the topic of ‘divorce tourism’.
The proceedings in Villiers are extremely distinctive. Although the divorce is issued in the Scottish courts, in that case, the wife decided to issue proceedings for a failure to maintain on the part of her husband, which are separate and legally speaking ‘free standing’.
Whether this is correct in the circumstances of the case is the subject of the current Supreme Court appeal and opens consideration of wider issues of the application of European Union law to domestic legislation.
Many may wonder why anyone would issue separate proceedings in a different jurisdiction in the circumstances.
The answer is of course simple: financial provision within English family law is amongst the most generous in the world. The question of maintenance is a case in point.
Under Scottish law, a maintenance claim for a spouse has a maximum duration of three years. In England, the courts can make what is known as a joint lives order.
The differences are apparent and acute in some cases. Mrs Villiers is aged 60 and was financially supported throughout the marriage by her husband. The financial claim which an English court could make is substantial as compared to a fixed-term of three years.
This is a highly unusual set of circumstances, but more commonly, lawyers practising in this area deal with cases in which there is a race to issue in England as opposed to another jurisdiction.
At present, the law is relatively clear insofar as dealing with EU countries. If a divorce petition is issued in England before any proceedings are issued in an EU country, the English courts have jurisdiction.
How this will play out in the future, with the forthcoming Brexit, remains to be seen. Concerning non-EU countries, there is discretion and in essence, an English court would be tasked with determining the most appropriate forum based on a range of factors to determine which is the appropriate country for the divorce to proceed in.
English legal culture in relation to financial provision for spouses is very different from many other countries. It is embedded in English family law that on divorce, a spouse should be provided for with the principles of needs and sharing uppermost in the minds of any judge.
Whilst this discretionary exercise is open to criticism for a lack of clarity and transparency, it’s objectives of meeting the needs of the most vulnerable, and indeed the weaker economic party within a marriage, are laudable. It is worth bearing these issues in mind when considering the issue of ‘divorce tourism’.
What this amounts to in practice is the difference between the needs of dependent spouses, who for many years may have supported their spouse during the marriage, but who on divorce is potentially left without any support. It is a matter of public policy whether this is an appropriate way to deal with this area or not but it is more complicated than simply looking at the nationality of the parties.
The decision of the Supreme Court in the case of Villiers will be viewed with interest by many in this area to see the extent to which it is a judgment limited to its facts or whether indications of wider judicial leanings are given.