You take the high road and I’ll take the low road (and I’ll get a maintenance order from England)
An overview of a significant case relating to the complexities of ‘divorce tourism’, or ‘forum shopping’. Read on for more information.
Scottish aristocrat, Charles Villiers, has recently lost a complex and technical appeal relating to the long-running divorce from his wife, Emma, in the Supreme Court.
The Supreme Court’s judgment revolves around Mrs Villiers’ successful claim for maintenance from the Family Court in England and Wales, despite the divorce proceedings issued by Mr Villiers having taken place in Scotland.
Prior to their separation, the parties lived from 1995 to 2012 in Dumbarton, near Glasgow. Mr Villiers argued that Mrs Villiers should not have been able obtain a maintenance order in the English Family Court.
However, after careful consideration of the relevant EU regulations from 2009 and domestic secondary legislation relating to it introduced in 2011, the majority view of the Supreme Court was to allow Mrs Villiers’ application to proceed.
It was not open to the Family Court to decline her application on the basis of the Scottish court having already received Mr Villiers’ divorce proceedings and arguably being a more appropriate ‘forum’, or if the two sets of proceedings were deemed to be ‘related’, which they were not.
Why is the case significant?
The case has highlighted the possibility of a spouse generally based or ‘domiciled’ in Scotland seeking a maintenance order in England, despite divorce proceedings taking place in Scotland.
It should be noted that Mrs Villiers was ‘habitually resident’ (living) in England when she made her application for a maintenance order. However, it is relatively straightforward to change ‘habitual residence’ on short notice.
Choosing a jurisdiction based on how favourably it is perceived as treating a particular applicant is known as ‘forum shopping’ but this is a complex area of law upon which advice from specialist family lawyers should be obtained.
Interestingly, given the current ‘transition period’ in respect of Brexit, it remains to be seen whether the law underpinning the Villiers judgment will remain after 31 December 2020.
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