Is this the end of 'divorce tourism'?

In this blog, I take a look at what has become known as ‘divorce tourism’ – the practice of trying to establish a connection with the UK in order to use its divorce courts. I also look at whether a recent case in the Supreme Court may have signalled, if not the end of the practice, possibly the beginning of the end of it.

What is divorce tourism?

It is sometimes said that England and Wales have one of the most generous divorce regimes in the world. I am not entirely sure that is true, but there are certainly plenty of legal jurisdictions across the world where that country’s divorce laws lead to less generous settlements than might be the case here. Where couples particularly own property in more than one legal jurisdiction, there is a temptation to try to use the courts where the settlement might be most generous.

Does the divorce have to have happened here?

No. There is a piece of legislation known as the Matrimonial & Family Proceedings Act 1984 (The 1984 Act). Under it, one spouse can bring a financial claim in this country even after a divorce has taken place in another country. Amongst other things, the court will look at the closeness of the applicant’s connection with this country. Also, the permission of the court is necessary for such an application to go ahead.

Sometimes, one spouse might choose to relocate back to the country of their birth or somewhere else where they wish to live. That is when the court has to assess whether a financial claim should be allowed to be brought here.

So, what was the Supreme Court case about?

The case concerned a couple born in Russia who lived there all their lives and divorced there after more than 30 years together. Extensive litigation followed, and the wife received half of the value of the assets owned by the husband. In Russia, though, marital assets do not include wealth held by trusts or companies, and these were said to form the bulk of the husband’s wealth (which was estimated to be in the range of £20 billion). Following the divorce in Russia, the wife relocated to London and bought a flat there. She then made an application to the court.

What happened in the litigation?

At first, the wife was successful. She made an application to the court without notifying the husband. Once notified, he applied to set aside the original ruling. He was successful. The wife then applied to the Court of Appeal. It found there was no power for the original judge to set aside unless there was a compelling reason. In effect, it needed to be sure that the court had been misled. Since the original judge hadn’t been materially misled at the original hearing, he couldn’t set aside his own judgment.

What did the Supreme Court do?

The Supreme Court was divided. Two judges sided with the wife, and three with the husband. Therefore, he prevailed, and the case was sent back to the Court of Appeal to consider the case again.

What is the significance of the judgment?

Many commentators believe that this decision will act to dissuade people from trying to have ‘two bites at the cherry’ – not being as successful as they would like in another country but then coming to England & Wales to try again. Whether that is the effect remains to be seen. There are those who would think that at a time when court resources are thinly stretched and at a premium, better use of them might be found than dealing with cases of this kind.

Are there any other more practical uses for the 1984 Act?

Emphatically yes. It is not unknown for one spouse to have a substantial pension in the UK and then for a couple to go and live somewhere else in the world and possibly get divorced there. I have encountered this myself and assisted a couple who wanted to share a UK military pension, having determined to divorce in the country where they had chosen to live. It is not possible for a ‘foreign’ court to make an order over a UK pension, and so an application under the 1984 Act helped the couple to achieve what they wanted to – the sharing of the pension (to go with the sharing of their other assets in the country where they had emigrated to). I think that is a rather more practical use for a useful piece of legislation.

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