There have been some interesting developments recently in the world of family law which reflect the vagaries of this area of the law of which I will mention but two. The first concerns the high end of the market and a Russian couple Mr. and Mrs. Golubovich. After an 18 month marriage Mrs. Golubovich was awarded a settlement of £2.8 million. The husband’s lawyer exclaimed in the Daily Telegraph that such an award will mark this country as the ‘divorce capital of the world’, an accolade which is often bandied about by the disgruntled. The case is interesting as it involves what is called in the trade ‘forum shopping’ i.e. looking for the best jurisdiction to deal with your divorce and which court you think is going to more favourable to you. It is often considered that who gets their divorce petition in first has the upper hand, for both sides the twists and turns in this case did not quite turn out as either may have initially planned.
The parties to this drama were both in their twenties. The wife was a fashion student and the husband a very wealthy financier from an affluent family. The parties lived in Kensington in a property worth £4 million. There was one child.
When the marriage broke down in 2009 both sides embarked on strategic maneuvers to achieve the best result. The wife filed for divorce in London in the February and the case was set down for trial in the August. The husband favoured a Russian divorce and filed his own petition in Russia in the April. He did not however ask for the English proceedings to be put on hold. The wife not happy with the Russian proceedings sought to contest them and embarked on various delaying tactics in the Russian court. The Husband and his lawyer proceeded to circumvent the normal legal channels and invent a hearing in the Russian Court in the July 2009. They proceeded to forge a divorce decree no doubt whilst sharing a bottle of vodka to expunge any feelings of guilt at their misconduct. One can see why the wife was less than keen to proceed with a divorce in Russia. The husband sought to rely on this forged document to put the brakes on the English proceedings. The English court smelling a rat adjourned the proceedings so that the issue of whether the marriage had been dissolved in Russia could be heard. The husband gave an undertaking to the court not to proceed any further with the Russian divorce which of course true to form he completely ignored and proceeded to ask the Russian court to dissolve the marriage.
The wife asked the English court not to recognize the Russian divorce and she was successful first time round. The husband however appealed and the Court of Appeal granted his appeal on the grounds that the English Court had no jurisdiction to interfere with a decision made in a Russian Court which was entitled to ‘dissolve a marriage between two Russian citizens’ in the absence of any treaty with the UK.
The Court concluded that the Russian divorce did not prevent the wife from pursuing her financial claims under Part III of the Matrimonial and Family Proceedings Act 1984 (which allows an English court to make financial orders even after an overseas divorce) as there were marital assets in the UK. The High Court awarded the wife £2.8 million, the husband appealed and the Appeal Court upheld the decision saying that the award was justified even though the marriage was dissolved in Russia.
The Court was critical of both parties and the way they conducted the litigation and the extensive costs both sides had ran up. The Courts were not to be used for the purpose of a ‘war of attrition’ between the parties. The extent to which the husband went to secure a divorce in Russia was rather pointless given the fact that the wife could seek a financial remedy in this country anyway.
I do not know if Ilva has received her £2.8 million, if not, no doubt that in itself will result in further bouts of litigation. One does wonder why the husband did not consider a pre-nuptial agreement given the fact that all of the wealth appeared to come from him pre-marriage. One can safely assume that if he chooses to marry again he will not fall into the same trap and no doubt whilst the happy second Mrs. G is sweetly trotting down the aisle the expectant groom will be blowing the ink dry on the pre-nup.
On a serious note there are of course many considerations to be taken into account when looking at this issue and the important point is not necessarily where you get married but where you get divorced. I will come back to this topic and what factors have to be taken into account in a forthcoming blog so stay tuned for the next thrilling instalment.
Turning from the bitter to the sweet, the new Family Procedure Rules came into force on the 6th April and with them the requirement that parties should now attend a mediation assessment appointment before making an application to the court. There are exceptions to this rule. The attendance at one of these sessions is a requirement, it is not mandatory; however the expectation is that the Court will want to know why the parties have not considered mediation and at any stage of the court proceedings the Judge will have a discretion to suggest mediation. There has already been some criticism levied at the new requirement in particular by our Chair of Resolution, David Allison who has raised his concerns that ‘ the Government has rushed headlong into these changes in an unplanned way, which may has led to some worrying flaws’. Although he endorses mediation as a valuable option for some separating couples as all practitioners know one shoe does not fit all. I will give a more detailed analysis of the new rules in my next blog as they are extensive and certainly not bedtime reading even for the most robust lawyers out there. I will endeavour after extensive reading, reflection and a large vodka to share the most salient points with you in due course.