Legal experts have warned that England could become a hotspot for “divorce tourism” after the Supreme Court ruled the estranged wife of an English aristocrat can pursue her maintenance claim in England rather than Scotland.
The landmark ruling last month means that Emma Villiers, who lived in Scotland for more than a decade, will be able to bring her application for maintenance payments to the Family Division of England’s High Court, which is generally regarding as more favourable to applicants than Scottish courts.
Charles Villiers and Emma Villiers were married for 17 years and spent the majority of their time living in Dunbartonshire, Scotland. Although the divorce was filed in Scotland, Mrs Villiers, who has lived in England since the couple split in 2016, applied for maintenance payments in England.
A judge granted her £5,500-a-month interim payments, a ruling which Mr Villiers branded “a cash grab” by his former partner, and challenged the ruling at the Court of Appeal. When his appeal was rejected, he went to the Supreme Court in London but was again defeated.
Now family law experts have warned that the landmark ruling will pave the way for “divorce tourism” in England, as other divorcees head south of the border to make claims.
What is divorce tourism?
Despite their close geographic proximity, Scotland and England are miles apart in relation to family law and financial matters.
In Scotland, couples can divorce during their first year of marriage, while England enforces a one-year minimum term before legal separation can begin. If the couple’s financial agreement is resolved, and there are no children under 16 affected, then there is no need to submit it to the Court to have it approved, unlike in England. In this vein, capital assets are not included in the matrimonial pot in Scotland.
Divorce settlements in Scotland tend to be less generous because inherited wealth is not commonly included in any award, and maintenance is limited to three years. English courts, however, can award lifelong maintenance payments and are usually calculated in favour of the recipient.
Now, legal experts have warned that a victory from Mrs Villiers may encourage other Scottish divorcees to seek court proceedings in England, to take advantage of the legal differences. The concerns centre on an increasing number of people heading to London – dubbed the “Divorce Capital” – to have their cases heard by the English courts.
How do maintenance payments work in England?
According to a leading family law solicitors in the UK Axiom Stone, maintenance payments are essential to ensuring children do not suffer as a result of their parents’ divorce. The firm said: “Such issues can have deep-rooted effects, not only on the people directly involved, but on the wider family. When a relationship breaks down, the financial obligations towards children do not end. Child maintenance or Child support is financial support that helps towards a child’s everyday living costs.”
When divorce is amicable, parents will often agree the amount according to their own calculations. However, if an agreement can not be reached, the Child Maintenance Service will intervene to ensure the child or children are protected.
The amount will then be calculated according to how many children there are, the paying parent’s income, how much time the paying parent spends with the child, and whether they are making other child maintenance payments.
If the couple is involved in court proceedings, to decide how assets should be divided, then the parent seeking maintenance payments can apply to an English court to have the agreement turned into a consent order, as in the case of Mrs Villier.
Normally this would be done in the country where the divorce was originally filed, but there is scope for it to be handled in an alternative location in certain circumstances.
Keeping divorce out of the courts
While the prospect of “Divorce Tourism” continues to grab headline news, many legal experts are urging divorcing couples to look at alternative strategies for agreeing the division of assets.
Reassured, a site which offers free UK family law advice, said that Family Arbitration was often cheaper, less stressful, and led to more amicable relationships moving forward.
Writer Josephine Walbank said: “By attempting an approach other than the courts, it is likely that your dispute will be resolved in a way that is altogether far faster, cheaper and easier. It certainly won’t be an option that works for all couples but it is a great point from which to broach the matter. It’s important to note that this is not, by any means, intended to criticise the work of the courts – they provide an inconceivable amount of aid to families up and down the country. However, there are some significant drawbacks to attending court which would make alternative options like Family Arbitration preferable, should they be a suitable possibility.”