Whilst the Covid-19 crisis has caused tourism to ground to a halt, one form of tourism which certainly appears to be gathering pace is ‘Divorce Tourism’. This occurs when the economically weaker party to a divorce seeks a financial settlement in England, compared to their ‘home’ country in the hope of obtaining a more generous award. This has become increasingly prevalent due to recent Supreme Court decisions.
England has long been labelled the ‘divorce capital of the world’, largely due to English courts (unlike other jurisdictions) having a large amount of discretion when making financial orders, and the ability to order long-term spousal maintenance, something which is often capped to just a few years in other jurisdictions. For separating couples who are eligible to file for divorce in numerous jurisdictions, this has encouraged ‘shopping around’ for the most advantageous result.
The court last week ruled that English-born Mrs Villiers, who spent most of her married life in Scotland and returned to England shortly after separating from her husband, was able to have a maintenance calculation by English courts despite divorce proceedings being initiated by her husband in Scotland.
Can anyone take advantage of ‘divorce tourism’?
The ability of the English courts to do this comes from Part III of the Matrimonial and Family Proceedings Act 1984, allowing the English courts to ‘step in’ for financial relief after a foreign divorce. It is at the discretion of the courts to allow this, meaning that there is no guarantee, however to make an application, one of the following requirements must be met at the time of the foreign divorce:
-At least one of the parties to the marriage domiciled (treated as permanent home) in England and Wales for a year preceding the application;
-At least one of the parties habitually resided (lived for an appropriate period of time, determined by the court, and possesses an intention to settle) in England and Wales for one year preceding the application;
-At least one of the parties had at least a beneficial interest in the matrimonial home, being in England and Wales. Note that in this case, the financial order is limited to dealing solely with the issue of the matrimonial home, so the party cannot benefit from long-term maintenance. Despite meeting this criteria, most cases have been unsuccessful. Villiers is interesting in the way it deals with the issue of cross-border divorces, and may present an opportunity for further cases in the future.
Is divorce tourism ultimately a good thing?
The decision in Villiers was justified by the Supreme Court by considering the purpose of financial remedies on divorce being for the benefit of the “more vulnerable party”, and that considering the jurisdiction which is “most convenient and least expensive for them and allows for the most generous maintenance provision” should be permitted. This nonetheless can mean that the economically stronger party is ordered to make much larger payments, despite the facts of the case being identical in both jurisdictions. Whilst the extent of which ‘divorce shopping’ is permitted remains unclear, with the court’s recent support it appears that divorce tourism is here to stay.