An aristocrat has lost a Supreme Court appeal regarding the finances of his divorce in a ruling that will reignite debate on forum shopping.
Charles Villiers, a relative of the Duchess of Cornwall, filed for divorce in 2014 in Scotland, where he and his wife, Emma Villiers, spent almost all of their married life. In 2015 Emma Villiers made an application under section 27 of the Matrimonial Causes Act 1973 in England seeking maintenance. England and Scotland have different approaches to financial provision.
Charles Villiers argued that the English court did not have jurisdiction to deal with her maintenance application. However, by a majority, the Supreme Court today dismissed his appeal.
Giving the lead judgment, Lord Sales said the husband’s divorce proceedings in Scotland was not a ‘related action’ within article 13 of the Maintenance Regulation.
Lady Black said the frustration that UK family lawyers might feel, when contemplating the potential fragmentation of the proceedings required to resolve the financial affairs of the couple, is understandable.
Giving a dissenting judgment, Lord Wilson said an adverse consequence of today’s 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’.
Family lawyers have been closely following the case.
Caroline Holley, a family partner at Farrer & Co, said the decision in Mrs Villier’s favour gives the green light to so-called ‘divorce tourists’.
Holley said: ‘Today, the door to the English court remains firmly open to those wanting to bring financial claims in England upon a divorce. Mrs Villiers’ victory also underscores the English court’s preference for protecting the party deemed to be the more vulnerable, and has reinforced England’s title as the divorce capital of the world.’
Alex Carruthers, a partner at Hughes Fowler Carruthers, said: ‘Although close geographically, Scotland and England are worlds apart in their treatment of parties on divorce. This case opens up the possibility of exploiting that gap even more in the future.’
Zahra Pabani, a family law partner at Irwin Mitchell, said the Supreme Court made a good decision. ‘In England and Wales, we thrive on discretion and we have bespoke arguments for bespoke cases. In this instance, Mrs Villiers proved her need and has now been granted it; it won’t necessarily be the same case for others, but again those can be worked out based on what’s fair,’ she said.
‘There’s been a lot around “divorce tourism” cases in the courts of late, and it’s possible this outcome will add to the debate around forum shopping in this country. Of course, Brexit might throw a spanner in the works but until the details are worked out, it’s likely financially weaker parties will continue to bring their divorces in front of English courts.’
Katie Lowe, a partner at JMW Solicitors, said the ruling 'throws a spotlight on the centrality of EU law to family law in this country and the huge amount of work that will be required to disentangle it if there is a total break with EU law at the end of the [Brexit] transition period'.