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February 15, 2011

Withers: Traversa case leaves England attractive for divorces

By Spear's

Yesterday’s decision means that forum-shopping may still take place and end up in England

The Court of Appeal yesterday handed down a judgment reversing the Judgment of Mr Justice Bodey and granting Mr Traversa leave to make an application in England under Part III for financial provision after an Italian separation order was granted in Italy in 2003 and an Italian divorce was granted in 2008 rather than him applying to the Italian Court.

The governing statute, Part III of the Matrimonial and Family Proceedings Act 1984 (‘Part III’), provides that where a marriage has been dissolved in a foreign country and the divorce is recognised as valid in England and Wales, either spouse may apply to the English Court for an order for financial relief.

This is the first reported case since the judgment in the case of Agbaje which opened the flood gates for applications following a foreign divorce in circumstances where the divorce was concluded in another European jurisdiction. The decision will give food for thought to those wishing to engage in forum shopping and who may seek to file for divorce in a European jurisdiction to take advantage of the less-generous approach to financial awards. 

The Court has made it clear that whilst Part III is designed to exclude ‘unmeritorious cases’, it is not necessary for a Judge considering the application for leave to undertake a ‘rigorous evaluation’ of all the circumstances.

Suzanne Todd, partner in the family team at Withers LLP comments:

“This decision reinforces the view amongst practitioners that increasing number of cases in which those unhappy with divorce awards in foreign jurisdictions will look to the English Court for a second bite of the cherry where the former spouse has a significant connection with England.

“Is this decision a sign, notwithstanding the decision by the Supreme Court in Radmacher that a pre-nup can now be binding providing the terms are fair, that England continues to set itself apart from its European counterparts given that after a valid separation and divorce in Italy, the husband is seeking further provision from his ex-wife.

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“With England being known as the ‘divorce capital of the world’ forum shopping has become a hot topic in recent years with a perception that the wealthier spouse is likely to get a better deal in other jurisdictions. Will the opportunity for people to try to play the system by filing first in time in European countries effectively be washed away?”

Vanessa Mitchell, Assistant in the family team at Withers LLP adds:

“If a foreign judgment making provision for one spouse to pay maintenance to the other is to be afforded recognition under European legislation, in theory any application under Part III where there has been a European divorce should be restricted to applications for capital, property adjustment orders or pensions.  We await the outcome of the substantive hearing on Mr Traversa’s application with interest.”

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