Divorce Tourism – In which country should I issue my divorce?

On 1 July 2020, the Supreme Court, the final court of appeal in the UK for civil cases, gave a Judgment in a divorce case that has re-started the debate on what is often called forum shopping in divorce cases.

By way of background Mr Villiers and his wife lived in Scotland for the majority of their married life. The wife returned to England and issued a divorce application. Mr Villiers challenged this and it was agreed that the divorce (not the financial proceedings) would be dealt with in Scotland. Mrs Villiers subsequently issued an application in the English courts for maintenance.

The husband argued that the English court did not have the jurisdiction to deal with that type of application.  The Judgment of the Supreme Court on 1 July 2020 dismissed his appeal.

The Law surrounding the case is technical and bound up in EU legislation. Essentially however it gives one party what Lord Wilson called, ‘untrammelled licence… to go forum-shopping…’

It has long been thought that England and Wales is subject to divorce tourism and London is the ‘divorce capital of the world.’  People apply for divorce here because the financially weaker party gets ‘favourable’ treatment.  There have been a number of very high-profile cases in the media in recent months where it was seen to be advantageous to the financially weaker party to deal with it in London. Others would argue that there is a greater element of discretion in England and Wales and that the Court has the ability to take a holistic approach to each case focussing on the needs of the parties.

Whilst geographically neighbours the law in relation to divorce and financial matters in Scotland is miles away from the system in England and Wales.

The Scots took steps a number of years ago to streamline the divorce system. You can divorce within the year you were married. In England and Wales you must wait one year. If you have resolved your financial agreement in Scotland between you and there are no children under 16 years old there is no need to submit it to the Court to have it approved as you must do in England and Wales where a consent order must be rubber stamped by the Court.

If you bring assets to the marriage in England and Wales these can form part of the settlement. In Scotland capital assets held by either party (apart from the family home) do not go into the matrimonial ‘pot’ to be considered.

In England and Wales any inheritance that is received during the marriage is generally shared however in Scotland it is usually excluded.

As with the Villiers case periodical payments (maintenance) applications can be made in England and Wales and this can be for any term up to the joint lives of the parties. However in Scotland maintenance payments can only be fixed for 3 years.

If you are in any doubt about where you should issue your divorce proceedings please seek legal advice.

Speak to our specialist divorce lawyers today

IBB Law’s family law practice can provide expert advice on all divorce issues. To contact the family law team please email familylaw@ibblaw.co.uk or call 03456 381381.