Today’s Supreme Court judgment on applications for financial relief following an overseas divorce has been described as ‘long overdue’ and ‘a warning that an application in this jurisdiction is not a meal ticket’.
The majority judgment in Potanina v Potanin found the practice in dealing with application for leave under Part III of the Matrimonial and Family Proceedings Act 1984 flouted the essential requirement of procedural fairness.
Baroness Shackleton, who represented Potanin, said: ‘I am delighted, and grateful to the Supreme Court for its careful analysis of how this troubling practice had developed in family law and for putting it right. The judge at first instance wished to change his mind having heard from both parties and I am pleased that he has been vindicated for doing so. Divorce tourists will now have their claims subject to fair and robust scrutiny before being granted leave in this jurisdiction. It is long overdue.’
Katie McCann, managing partner at family firm Lowry Legal, described Part III as ‘a controversial tool’. She added: ‘The main purpose of this legislation though is to alleviate hardship in cases of foreign divorce. While the wife’s claim has not been dismissed, today’s decision is a common sense one and takes us one step closer towards shedding the label of London being the divorce capital of the world. Such a decision will act as a warning to parties with significant wealth that an application in this jurisdiction is not necessarily a meal ticket.’
Richard Kershaw, partner in the family department at London firm Hunters Law, disagreed. He said the decision to remit two of Potanina’s grounds of appeal to the Court of Appeal was a reminder of the complexity of such claims. He added: ‘It will do nothing to discourage so-called “divorce tourism” which allows typically [ultra high net worth] litigants to bring financial claims in England following a divorce in other countries.’
Jennifer Dickson, partner in the divorce and family team at international firm Withers Worldwide, said the judgment ‘sent a warning shot’ to those divorced overseas who ‘want to try their hand in the English family court’.
She added: ‘The forum shopping floodgates to London were partly closed this morning. From hereon, judges must now give the financially stronger party a proper chance to object to those arguments.’
Peter Burgess, partner at Burgess Mee Family Law, said: ‘The Supreme Court has narrowed the window for divorce tourists by allowing their spouse the chance to be heard at an early stage and for the court to look at the application afresh without the need for a knockout blow or compelling reason.’
Looking ahead, Bethany Wood, associate at Collyer Bristow, said: ‘Although there are no guarantees as to the outcome of case, if Mrs Potanina is ultimately successful in her application, this could be London’s biggest divorce settlement to date.’
