The recent De Renee case may mean fewer divorce tourists coming to England but isn’t quite the nail in the coffin says John Darnton.
It has been suggested that by rejecting a claim brought by Catherine De Renee against her former husband, Jason Galbraith-Marten QC, the Court of Appeal has put a nail in the coffin of divorce tourism. I suspect not.
Divorce tourism, often called forum shopping, arises where one or other party has the ability to commence divorce proceedings in more than one country. This usually means filing proceedings in the country which is likely to produce the best outcome for them.
Divorce tourism is often frowned upon by the judiciary as it can lead to costly (and often hugely costly) court disputes. Inevitably one person’s advantage is another’s disadvantage. It is perhaps human nature for a person going through the pain and upset of a marital breakdown to seek out the best possible result.
Indeed, the Law Society’s Family Law Protocol advocates that, in appropriate circumstances, solicitors should consider which country or countries are the appropriate jurisdiction to issue proceedings and which is the most advantageous. Sometimes the advantage will be in terms of the remedies available, for example some countries limit an applicant’s capital claim to a share of the ‘community’ whereas in other countries the law prescribes the amount or duration of spousal maintenance. Sometimes the advantage will relate to the enforcement of any award, i.e. where are the most valuable assets located? As long as these differences exist, there will remain a strong temptation to shop around.
The Court of Appeal rejected Ms De Renee’s claim to receive further financial provision for herself following her previous divorce and financial settlement in Australia. It seems the judge was unpersuaded by the argument that the Australian settlement was not fair and did not make proper provision for Ms De Renee and their daughter. It is not known why the original divorce proceedings and financial negotiations took place in Australia. It may be that that was what suited Ms De Renee at the time. It is also not known if she could have brought divorce proceedings elsewhere, for example in England.
Apparently, Ms De Renee now finds herself in a financially precarious situation living on child support and state benefits. The English court may have had sympathy for her predicament but as Lady Justice Black stated, the English court ‘is not here to provide a top-up for every foreign divorce’.
Ms De Renee was not engaged in forum shopping but potentially she was asking for a second bite of the cherry by inviting the court to review what had been done in Australia.
It is possible, in certain restricted circumstances, for financial claims to be pursued in this country following a foreign divorce. In 2010 the Supreme Court considered this jurisdiction following a Nigerian divorce. The court confirmed that the purpose of the provision was the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where the parties had substantial connections with England.
The whole point of the remedy was to allow for relief in circumstances where there had already been proceedings in a foreign court. The applicant needs the court’s permission to proceed with the application. In considering the application, the judge has to decide whether it is appropriate for an order to be made, taking into account the various statutory factors but the court does not need to decide which is the most appropriate country to deal with the application. The Supreme Court also confirmed that the intention of the legislation was not to allow a ‘top-up’ of the foreign award to equate to an English award.
There has been previous here. In 2014 the court had to consider an application made following an agreement embodied in a Separation and Relationship Property Agreement in New Zealand. Having considered the competing arguments, the judge concluded that, as a matter of fairness, it would not be justified nor right to allow the wife to launch ‘a second full scale enquiry into the husband’s circumstances with a view to extracting further funds from him’. The wife’s application for leave was therefore refused. But it was nevertheless considered…
‘Divorce tourism’ is therefore neither dead, nor moribund. For those with money to fund litigation (sometimes in two countries at the same time) it remains an option and occasionally a necessity. Ms De Renee clearly faced an uphill task in securing assistance from the English court because of the background to her case but for others England will still be seen as the place to get divorced because of the wide discretion available to judges to strive for a result that is fair.
John Darnton is a lawyer and Bircham Dyson Bell