Should I Divorce in England or Scotland?

You may think that when it comes to getting divorced and sorting out a financial settlement you don’t get a choice about where to start court proceedings. Our Manchester divorce solicitors will tell you that isn’t necessarily right and that when it comes to choosing your divorce forum it is best to get expert legal advice to make sure that you make the decision that is right for you. In this blog we look at the recently reported case of Mr and Mrs Villiers that highlights how a short geographical distance can make an enormous difference to the size of your financial settlement.

The Case of Mr and Mrs Villiers

One of the things that the Villiers case reminds divorce solicitors about is that divorce forum shopping doesn’t have to involve international families. That is because the disputed jurisdiction was between England and Scotland.

Charles Villiers asked the English Supreme Court to rule that his wife’s spousal maintenance claim should be decided in Scotland because he had started his divorce proceedings there.

In 2014 Mr Villiers filed for divorce from his wife, Emma in Scotland. During the eighteen year marriage the couple lived near Dumbarton in Scotland. When the marriage broke down Emma Villiers moved to London and started a new life there. In 2015 Emma Villiers applied to an English court under section 27 of the Matrimonial Causes Act 1973 for spousal maintenance. The English court ruled that she was habitually resident in England at the time of her application and so was entitled to ask the English court to rule on the amount of spousal maintenance. Mr Villiers disagreed and he therefore appealed the jurisdiction decision. His appeal eventually arrived at the Supreme Court.

The Supreme Court ruled, by a majority decision of three to two, that Emma Villiers could pursue her spousal maintenance claim in England.

You may question why time and legal fees were spent on arguing on court jurisdiction when Scotland and England are both part of the UK and not a million miles apart.

The cost of the court proceedings makes sense in the financial context that family courts in Scotland only tend to order payment of spousal maintenance for three years. Manchester divorce solicitors say that the Scottish position is sharply contrasted to the position in England where, in an appropriate case, a family judge can order spousal maintenance for life. Spousal maintenance for life means that the spousal maintenance payments won’t stop until:

• The payer dies – however the spouse receiving the spousal maintenance payments can make a claim against the estate if financial provision isn’t made under the terms of the Will or through an insurance policy
• The payee dies
• The payee remarries
• The court makes an order to stop payment of spousal maintenance – for example, if the spouse receiving the spousal maintenance is in a long term cohabiting relationship or wins the lottery.

Court jurisdiction makes a big difference when the monthly spousal maintenance payments amounts to £5,500 per month on an interim basis. Furthermore, Mrs Villiers is asking the court to award her spousal maintenance of £10,000 per month based on the lifestyle enjoyed by the family during the marriage and her husband’s wealth, although the extent of his wealth and the relevance of family trusts is disputed by him.

Doing the calculations, maintenance at £10,000 per month for three years amounts to £360,000 using Scottish law spousal maintenance principles but if sixty one year old Emma Villiers succeeds in her argument for life time spousal maintenance using English spousal maintenance principles then the figure could be far higher.

Mr Villiers said that his wife’s actions in starting court proceedings in England amounted to ‘’divorce tourism’’ but the Supreme Court has ruled against him this week and therefore the spousal maintenance court proceedings will take place in England.

The Supreme Court decided that the English court has jurisdiction to hear the wife’s spousal maintenance application because the divorce proceedings in Scotland are not what it called a ‘‘related action’’ under article 13 of the Maintenance Regulations. Not all of the Supreme Court judges agreed with the decision but the lead judge said that as Emma Villiers is habitually resident in England the court in England can decide the issue of spousal maintenance.

The decision is being seen by many as a charter for divorce shopping to ensure that a husband or wife gets the optimum financial settlement through their choice of court jurisdiction to hear the divorce or associated financial proceedings.

England is known for its generous financial provision for the spouse who is in a weaker financial position and the decision in the case of Mr and Mrs Villiers will reinforce that view amongst international divorce solicitors.

If there is potentially more than one court jurisdiction for your divorce and financial court proceedings then it is best to take early legal advice from an expert Manchester divorce and financial settlement solicitor to make sure that you achieve a financial settlement that best meets your needs.

Our Manchester Divorce Solicitors

For specialist divorce and financial settlement legal advice call Whitefield, North Manchester and Cheshire based Evolve Family Law or complete our online enquiry form. We offer family law consultations by face to face appointment, video conferencing, Skype or by telephone appointment.