“Divorce Tourism” and the Supreme Court judgment in Villiers vs Villiers

On 1 July 2020 the Supreme Court handed down their long-awaited judgment in the case of Villiers v Villiers [2020] UKSC 30. 

The case of Mr and Mrs Villiers has attracted interest from family lawyers in Scotland and England as it addresses the challenges faced when divorce proceedings are started in one jurisdiction by one party and the other party makes a claim for financial provision in another jurisdiction.

In this case the couple, Mr and Mrs Villiers, lived in Scotland but Mrs Villiers had moved back to England following their separation.  Mr Villiers filed for divorce in Scotland but did not apply for financial issues to be resolved.  Mrs Villiers accepted that she could not file for divorce in England as Mr Villiers had already instigated proceedings, but she filed a claim for maintenance in the English courts.  Some have labelled the action taken by Mrs Villiers as ‘forum shopping’.

The term ‘forum shopping’ is used here to describe the situation where one party (usually the wife or spouse in the weaker financial position) chooses to make an application for financial provision in England even though there are divorce proceedings ongoing in another jurisdiction.  The reason many people choose to issue proceedings for financial provision in the English courts is due to the fact that they have a reputation for granting generous maintenance to the spouse in the weaker financial position.

In the English courts spousal maintenance is regarded as being generous and allows for long-term maintenance and at a high level.  Compared to Scotland, where maintenance is granted for a shorter term, often just a handful of years, if that, a maintenance claim in England put Mrs Villiers a much more advantageous position.

Mr Villiers was less than pleased with the claim in the English courts and questioned the English court’s right to determine issues of maintenance.  The case was heard by the Supreme Court who, by a small majority, dismissed his legal challenge.

The application by Mrs Villiers was successful as it was argued that the EU Maintenance Regulations applied. This legislation makes it possible for maintenance claims to be commenced in the jurisdiction of England and Wales even though the divorce and other financial issues are being dealt with in another jurisdiction of the EU.

It is not yet known whether the provisions of the EU Maintenance Regulations will subsist post-Brexit.  It could be that what is seen by some as a ‘loophole’ to achieving a better outcome for maintenance in cross border EU cases may not exist after Brexit. 

Madeleine Harrington is a Family Law Solicitor in Spratt Endicott’s Brackley and Buckingham offices. To discussthis article with her please email mharrington@se-solicitors.co.uk

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation. The information is accurate at date of publication, 25th of June 2020 .