Few weeks go by without a divorce-related story concerning the rich, and sometimes famous, hitting the press and last week was no exception.
The latest case caught press attention due to the eye-watering legal costs (£1.6 million and counting), the international flavour of the case, and the public criticism of the case by the judge hearing it. So we thought it might be worth having a brief look at the case, the comments of the judge, and then the wider issue of who can access the justice of the English courts.
The case involves an extremely wealthy Malaysian couple. Theirs was a 42 year marriage producing five children. The wife resides in a property in Hertfordshire, and the husband is thought to live in Malaysia. Both retain their Malaysian citizenship. The couple have been disputing whether or not the English courts have jurisdiction to hear the case (the wife arguing they do, and the husband saying not and that the case should be heard by the Malaysian courts, where proceedings have also been issued), and the financial arrangements resulting from their eventual divorce. The case has been listed for a ten day hearing later this year to decide the preliminary issue of whether the English court should, in fact, hear the case.
The case has not progressed very far, and the legal costs to date have greatly alarmed the judge who described it as “deeply depressing that they have been litigating for around a year, both here and in Malaya; that they have already incurred this phenomenal expenditure of at least £1,600,000 in costs; and, so far as I am aware, that there has been little, if any, attempt actually to sit down and to negotiate.”
What grabbed the attention of the press though, were the judge’s comments about the case (and others like it) taking up valuable court time which could otherwise be used for needy, UK-based, litigants. He said: “The aggregate court fees that these parties have paid to date in payment for all this expensive litigation here are a mere £2,355. For that, they have already had all or part of six days of court time here in England. …. So far as the situation here is concerned, neither of them are British citizens. Neither of them currently pays any English taxes whatsoever. Very serious issues ought to arise as to just how much time of an English court these parties should be able to take up on these preliminary skirmishes, whilst squeezing out the many needy litigants who need precious court time to recover their children from abduction or seek their return from care, and other such issues.”
The point about payment of taxes has been disputed by the wife’s lawyer, as the husband has stakes in UK based companies, including Laura Ashley and a chain of hotels, but the criticism of international wealthy couples using the English courts is an interesting one.
It is worth pointing out that these sorts of super-wealthy international cases tend to be concentrated in the London courts, and are far less frequently seen in the courts in other parts of the country. Secondly, even in London, these cases are not the norm even in the higher courts.
So, briefly, what is it that allows international couples with connections with many countries to have their cases heard here? Establishing that you have the jurisdiction to issue proceedings in England is governed by European law, specifically a regulation known commonly as Brussels II revised. The position is a little complicated, with two slightly different legal concepts involved: habitual residence and domicile. You can issue proceedings in England and Wales if both spouses are habitually resident here, or just the respondent is habitually resident here, if the applicant has resided here for at least a year prior to the application, or for six months prior to the application and has his/her domicile here, or if both spouses are domiciled here.
As a result of these concepts, many international cases feature arguments about whether spouses are habitually resident or domiciled here or not, and indeed about what those legal concepts actually mean.
In more limited circumstances, couples who have divorced overseas and who can show a strong connection with this country can also ask an English court to “top up” the award made by a foreign court, using specific legislation enacted to assist in this situation.
Despite the grumbles of the judge hearing this recent case, the problem of wealthy foreign nationals taking up valuable court space is a limited one, both inside and out of London. By far the greater issue is the flood of unrepresented litigants, who are unfamiliar with law and procedure, but who have no option but to self-represent following the withdrawal of legal aid from the majority of family cases. Managing these cases is taking up much more time, both that of court staff dealing with the administration, and of judges who are faced with the often uphill struggle of managing hearings with litigants who do not know how they should present a legal case, or what a court can realistically do. The result is a further clogging up of the already creaking court system, which has a much greater impact upon ordinary people trying to access justice for their families.
If you would like to talk to us about jurisdiction or any other aspect of family law, give us a call on 01223 443333 to make an appointment.