Lawyers must fix the problems with gagging orders before it is too late
Four years ago, a headline in the Times read “Divorce tourists take over the courts”. In contrast, last month’s headline in the Guardian, “Court takes stand against divorce tourism” suggests that divorce tourism is being curtailed by family Judges.
But what exactly is ‘divorce tourism’? Why is it such an issue? And does recent case law truly demonstrate a ‘stand against divorce tourism’?
What is divorce tourism?
Divorce tourism arises in two ways. The first, and most common, occurs when parties have the option to start divorce proceedings in more than one country and choose the country which is likely to produce the best outcome for them. This is also known as forum or jurisdiction shopping.
The second occurs after couples have divorced in a different jurisdiction. The courts of England and Wales have the power to order financial provision after a foreign divorce (known as Part III cases, referring to Part III of the Matrimonial and Family Proceedings Act 1984).
The attraction to divorce in England and Wales for foreign couples is clear. Unlike other jurisdictions, which take a more rigid approach, the courts here have a great deal of discretion. They do not differentiate between home-makers and breadwinners and spousal maintenance is often generous to a non-working spouse. This has created the widely accepted perception that the English courts are very generous to the financially weaker party.
Why is divorce tourism an issue?
Divorce tourism is often criticised by the judiciary and the media as the courts, already under strain, have to deal with a number of cases that often have little connection to our jurisdiction but where parties seek the ‘London award’; a greater financial settlement than they would achieve elsewhere.
Divorce tourism can also lead to costly jurisdiction disputes. Parties can end up spending time and money arguing about the country in which to commence proceedings, long before they have even begun to consider the real issue, obtaining a judicial assessment of the facts and achieving a fair outcome.
Lord Justice Thorpe in the case of Golubovich  EWCA Civ 810 criticised the “wasteful” use of English family courts by foreign couples, taking time from our justice system where “there is no incentive to fight but financial advantage”. Thorpe called for a “more stringent allocation of judicial time to cases where the parties have a slender connection with our jurisdiction”.
A stand against divorce tourism?
In Golubovich the court awarded a Russian wife £3million following a Russian divorce and only 18 months of marriage. It was argued that this decision would open the floodgates for anyone with a slight connection to England to take advantage of this jurisdiction’s perceived generosity.
However, since Golubovich the court has taken the opportunity to close these floodgates and restrict the use of Part III claims.
The Court of Appeal recently held in the case of De Renee that the ex-wife of a London based barrister had failed in her application to reopen an Australian divorce settlement agreed 7 years before. The wife claimed that she and her daughter were in “real need” of greater financial support from her ex-husband. The court disagreed and stated that “the court is not here to provide a top up for every foreign divorce”.
The recent decision in Z v Z  EWHC 911 (Fam) seems on first viewing to go against this stand against divorce tourism. The court in Z v Z allowed the ex-wife’s Part III claim following a Russian divorce settlement agreed 7 years earlier that was expressly in ‘full and final settlement’.
The wife argued that the Russian order was intended to deal with Russian property only and had not dealt with spousal or child maintenance. The husband argued that the wife was seeking a ‘top up’ due to the substantial wealth he had acquired since the agreement.
In both De Renee and Z v Z, the parties had independent legal advice, they divorced 7 years before bringing their Part III claim and agreed to the settlement without undue influence or duress. However, Z v Z involved assets that were not disclosed in the Russian proceedings and the Russian court did not assess the wife’s housing needs in the UK. In contrast, the court stated in De Renee that “there was nothing to show that this settlement was unfair”.
The De Renee decision makes it clear that the court’s powers in these ‘second bite of the cherry’ cases are narrow and not a general tool to top up a foreign divorce settlement. This reflects the approach in Agbaje  UKSC 13 where the court clarified that its powers are in place to rectify situations where there is inadequate financial provision on divorce in a foreign court. Mrs Justice Roberts stated in Z v Z that, despite “particular and exceptional circumstances”, it was only deemed appropriate to allow the Part III claim by “the narrowest of margins”.
So, does recent case law signal an end to divorce tourism? The answer must be no. Where fair decisions have already been made in a foreign court, the English court will not intervene. The court will not simply top-up the award or equate to the England and Wales amount. The court will act where appropriate to do so in the interests of justice and fairness.
These decisions do not impact the wider issue of divorce tourism. Divorce tourism, particularly in the context of ‘jurisdiction shopping’, is very much alive and well in this country. The door is still open for foreign couples to commence proceedings in England and Wales, should they satisfy the jurisdiction requirements. However, the strict interpretation in Part III cases prevents the floodgates from being blown wide open.
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