David Hodson on International Family Law: Part III and Russian "divorce tourism"
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Apr 5, 2011, 13:35 PM
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The popular media predictably relished the sound bite given to them last Thursday when judgment was handed down in Golubovich. Seizing populist condemnation was relatively easy as a 28-year-old Russian wife, after an 18 month marriage, received almost £3 million. Counsel on behalf of the husband reportedly referred to divorce tourism and said that the case would open the floodgates for any woman with any connection with England to take advantage of the more relaxed approach to ancillary relief in this country. The so-called divorce capital in the world is open to business for divorce tourists!
As always, there is much more behind the headlines. Particularly there is much here which stands to the considerable credit of the English family justice system.
It was a Part III Matrimonial and Family Proceedings Act 1984 application for financial remedy after a foreign divorce. This itself shows credit in the facts of this case, already reported at  EWCA 810. After the wife issued first in England where they had their family base, the husband issued in Moscow and tried to delay the English proceedings by inventing a court divorce hearing in Moscow and then forging a purported Russian divorce decree. He was rumbled. The English court made a Hemain, anti-suit injunction against him, requiring him not to proceed with a Russian divorce until the conclusion of English proceedings. In breach, he obtained a Russian divorce, this time legitimately. Mr Justice Singer held on public policy grounds that the Russian divorce should not be recognised. Many would support his decision. However the Court of Appeal, in a very international-political policy decision, held that England should recognise divorces validly granted by friendly jurisdictions, and instead invited her to apply under Pt III. So given the husband's appalling behaviour, no one could criticise the wife for seeking an English financial remedy order after the Russian divorce.
The Supreme Court in Agjabe UKSC 13 made clear that this legislation is to alleviate the adverse consequences of no, or no adequate, financial provision on divorce by a foreign court in a situation where the parties had substantial connections with England. Since that decision, orders have been made in cases concerning Italy (Traversa v Freddi) and Germany (Schofield).
Instead, criticism of this remedy and the level of some awards in England really only highlights the inadequacy of awards and disclosure powers of many other countries around the world, including some within Europe. In too many cases, after a long marriage a financially dependent wife who has made marital sacrifices and has primary care of young children finds herself without any, or any material, spousal maintenance and without any significant capital for accommodation with the children, especially if the growth of the assets during the marriage was limited, yet with the husband retaining relatively significant wealth. This is a very unjust outcome in English cultural expectations of marriage as an equal marital partnership. If this causes spouses to apply in England where there is any English connection then this should be a matter of English pride at our fairness and justice. It is criticism of unjust and unfair outcomes in countries where divorce outcomes do not reflect marital partnership, marital sacrifices and marital ongoing commitments.
In any event in a series of cases, some Russian husbands have recently shown themselves particularly untrustworthy. In Golubovich, above, the Russian husband forged divorce papers to convince the English court that it should not proceed with the English divorce. M v M EWHC 2817 was another Pt III case in a Russian family with very strong connections with England and a long marriage with children. The husband took no part in maintenance pending suit proceedings and was seriously condemned by the judge for his actions in depriving the wife of accommodation and other support. She received a maintenance pending suit order of £460,000 per annum plus contribution to her ongoing legal expenses.
There have been a series of recent reported decisions in respect of Mr Agrest and Mrs Kremen, another Russian Part III case, because the husband is alleging after a 20 year marriage, of which 10 years were spent in England, that first he was already married when he entered into the marriage ceremony so should not have to pay and secondly was asking the Israeli court to annul the marriage. The English courts have found that he was driven by extreme malice towards the wife, had the funds to pay her and didn't. The English court looked at transfers which were clearly intended to defeat the claims of the wife.
This is not a generalisation about Russian husbands. It is seemingly evidence of the ability of some husbands to avoid making provision for wives and mothers of their children, even though we may recognise Russian divorces obtained in unsatisfactory circumstances. The same outcomes apply in a number of other westernised jurisdictions
England does occasionally make large divorce financial awards in cases which surprise even English lawyers. However most often where a couple have a good connection with England, the English court is faced with an alternative: allow claims here after a foreign divorce or the applicant, often the wife with dependent children, has negligible provision in the other country and faces relative hardship and with an adverse impact on the children. Permitting these Pt III applications should not be a criticism of England. It is not a condemnation of a relaxed approach to ancillary relief.
Instead it is a cause to be very proud and pleased that our family justice system is still able to look after spouses who have a good connection with England and to provide a fair and just outcome. England must remain open to business. Divorce tourism arrives with the branded logo of the scales of justice and equality kitemark of marital fairness.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.