A case of sour grapes?

09/10/2018 Desmond O'Donnell, partner, Thomson Snell & Passmore,

Determining in which country a divorce should take place can sometimes be as contentious as the divorce itself. 

Henri Orenga de Gaffory, 70, owns an exclusive vineyard in Corsica. He met his wife, Anne in 1998 and they married in 2002. Mrs Orenga de Gaffory helped her husband run the winery which sits in a world heritage site. 

After moving to England in 2014 when the marriage broke down, she commenced divorce proceedings, one month prior to her husband doing so in France.

The wife applied for maintenance within the English divorce proceedings and her husband was ordered to pay her in excess of £4,000 per month. The husband failed to comply with the court order and instead he lodged an appeal to prevent the divorce proceeding in England.

However, before his appeal can proceed, Mr Orenga de Gaffory has been ordered to pay more than £100,000 towards his wife’s legal costs, before 8 October 2018. If he fails to make the payment, his appeal against the maintenance order will be dismissed.

Many married couples have homes in more than one country. If a spouse believes that their marriage may end in divorce, it is not unusual for them to take legal advice on the best jurisdiction to file a divorce petition. 

For husbands, that location is likely to be outside England. Many see England, and in particular London, as the “divorce capital of the world”. English judges are considered more generous than their European colleagues and it is not unusual for spouses (usually wives) to commence divorce proceedings in this country, rather than in the country where they may have lived during their marriage (and possibly all their lives), where judges may be less generous towards them when considering an application for financial relief. 

In England judges often use their wide discretion to award the weaker spouse a much larger share of the matrimonial assets than a judge in another jurisdiction.

Many other countries operate a community of property system, for example, which is often less generous towards a financially weaker spouse because pre-marital or post separation assets and inheritance and gifts are not taken into consideration. This can lead to an unfair outcome for one spouse who may have sacrificed a career to care for the parties’ children.

Similarly, many countries are less generous when it comes to ordering spousal maintenance. For example, spousal maintenance payments in Scotland are limited to three years only, except in exceptional circumstances, whereas judges in England often make spousal maintenance orders for many more years. 

There have been many examples of Russian and Far Eastern wives coming to the UK to commence divorce proceedings, solely with the intention of expecting a more generous settlement.

It is likely that Mr Orenga de Gaffory was advised that if the English courts retained jurisdiction of the divorce proceedings, he will be financially prejudiced. It is vital to his financial interests that he succeeds with his appeal to have the divorce petition in England stayed in the hope that the French courts will have jurisdiction to deal with financial matters.

Unfortunately for him, his wife’s divorce was issued first in time and therefore, his application is likely to fail if his wife can show that she was habitually resident or domiciled in England when she filed her divorce petition. 

Any applicant petitioner must prove habitual residence or domicile in England and Wales, and presumably, Mrs Orenga de Gaffory was able to do that. Not all spouses may succeed in doing so and therefore, it is essential that legal advice is sought.

The law in relation to jurisdiction and whether or not, for example, a foreign spouse may file proceedings in this country is complicated and there are conventions which seek to harmonise the rules regulating divorce jurisdictions across EU member countries. 

We will have to wait to see what impact Brexit will have on the rules governing the filing of petitions by spouses living abroad and the enforcement of financial remedy orders made in this country. In the short term, there may well be no change, since there will be so much legislation (and legal conventions) that will need to be re-visited.

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