A distant relative of the Duchess of Cornwall, Mr Charles Alastair Hyde Villiers, has deemed his estranged wife’s decision to file for maintenance in England following their separation an act of “divorce tourism”. Mr Villiers, who is also a descendant of Mary Tudor, Queen of France, shared an 18th century manor house in the Scottish lowlands with his wife of 17 years, Emma Mary Jane Villiers, until their split in 2012. Following the breakdown of the marriage, Ms Villiers moved to Notting Hill, London with their adult daughter.

Mr Villiers, a publishing baron and racehorse owner, petitioned for divorce in Scotland in 2014 but three months later his wife brought her financial claim to the English courts.

Sitting in London’s High Court last March, Mrs Justice Parker ruled that as Ms Villiers was now habitually resident in London, her application could indeed proceed there. Taking the view that she could see no reason why “divorce should not proceed in one jurisdiction and maintenance in another”, the judge ordered Mr Villiers to pay her £5,500 a month pending finalisation of the divorce.

However, having won the right to challenge the ruling in the Court of Appeal, Mr Villiers argues that an English judge has no right to intervene in what is ostensibly a Scottish divorce. He claims that his wife has been “rewarded” for relocating to England, where maintenance payouts are likely to be more generous and can last longer.

Differences between English and Scottish family law

Under Scottish family law, spousal maintenance payments are, with few exceptions, limited to the first three years following the divorce. The English courts, however, take into account the longer-term needs of the financially weaker spouse, with particular regard to any diminished earning capacity that may have resulting from years spent as a homemaker. This means that, here, maintenance payments can potentially last for the rest of a spouse’s life, depending on the individual circumstances of the case.

Another key difference between Scottish and English family law is that the former does not count inherited wealth as matrimonial property. This is of great significance to case at hand as the majority of Mr Villiers’ fortune apparently lies in a £3.5 million trust fund inherited from his grandfather, plus £600k from his mother. Ms Villiers had claimed that, despite her husband having filed for bankruptcy in 2013, at which time his assets were seized and the family home repossessed, he is nevertheless able to meet his wife and daughter’s needs by dipping into the trust fund.

Mr Villiers contends that some of his inheritance have already been used to pay off their debts and, in any case, only trustees have direct access to the trust. Nevertheless, if the needs of a spouse cannot be met by matrimonial property alone, the English courts have the power to vary the terms of a non-matrimonial trust.

What is divorce tourism?

Michael Horton, acting for the husband in the Villiers’ case has echoed his client’s claim that the English court has encouraged divorce tourism:

“A JUDGEMENT IN FAVOUR OF THE WIFE IS EFFECTIVELY REWARDING HER BEHAVIOUR IN MOVING FROM SCOTLAND TO ENGLAND.”

In making a financial order against his client, Mr Horton argued that the English court was in danger of turning London into “the maintenance capital of the United Kingdom”.

London is already frequently hailed as the divorce capital of the world, thanks to its commitment to the fair and equitable distribution of property. It follows that accusations of forum shopping often plague big ticket divorce cases which play out in the capital. Ultimately though, a fight for a dispute to be heard in particularly favourable jurisdiction will only be won if they satisfy that forum’s particular set of criteria.

Whether an English court has jurisdiction to deal with a particular case depends on current and historic habitual residence, and domicile of either or both the petitioner or respondent. In brief, habitual residence refers to where the centre of one’s interests lie, whereas domicile is more complex: domicile of origin refers to where the father was domiciled at the time of the person’s birth, whereas a domicile of choice is where the person chooses to reside. As a person can only have one domicile at any given time, acquiring a domicile of choice necessitates a complete severing of one’s domicile of origin. More information on how domicile and habitual residence interplay with divorce proceedings can be found here.

Though the EU Maintenance Regulations apply to disputes between England and Scotland, Brussels II does not. This means that it is perfectly possible for simultaneous claims for maintenance and capital to proceed in different jurisdictions, making cross-border disputes particularly complex.