This article originally appeared in The Herald on Friday 7th July 2017.
An English aristocrat related to Camilla the Duchess of Cornwall wants to use Scottish divorce law to cut his wife out of a share of his £5 million family fortune.
Charles Alastair Hyde Villiers, 54, a descendant of Mary Tudor, says his wife Emma Mary Jane Villiers, is “trying it on” in the English courts as a divorce tourist.
Mrs Villiers, 58, wed Mr Villiers – a racehorse owner, publishing baron and scion of one of England’s oldest families – in 1994 and they settled to married life in an 18th-century mansion in Dunbartonshire.
But after 17 years together they separated in 2012.
Mrs Villiers and the couple’s daughter, now 22, set up home in Notting Hill, London, London’s Appeal Court heard. Her husband petitioned for divorce in Scotland in 2014, but three months later Mrs Villers applied to the English courts for financial maintenance.
In March last year, Mrs Justice Parker ordered Mr Villiers to pay her £5,500-a-month, to cover interim maintenance, pending finalisation of the divorce, and her legal bills.
But now Mr Villiers is challenging that ruling, insisting that an English judge had no right to intervene in a Scottish divorce.
Analysis: Case highlights differences in matrimonial law across the Border, provided by Gillian Crandles, Partner and Head of Divorce and Family Law at Turcan Connell.
Divorcing spouses will normally have their divorce dealt with in the jurisdiction where they are habitually resident.
Sometimes, however, more than one country can have jurisdiction and then there can be a race to issue proceedings wherever may be more favourable to one side or the other.
From the facts of the case, it seems that Mr Villiers won that battle.
The divorce proceedings here would ordinarily deal with all of the financial consequences of the marriage, including the division of capital and ongoing payments of support. Mrs Villiers seems to have managed to persuade the English court to deal with maintenance notwithstanding that the Scottish courts were dealing with the divorce.
There are key differences highlighted between the two jurisdictions.
In Scotland, Mr Villiers wouldn’t have to pay his wife’s legal costs on an ongoing basis – only at the end of the case and only in reasonably unusual circumstances.
He would almost certainly not be expected to support his wife for life.
Ordinarily, the courts wouldn’t look behind a trust as is sought in this case, although funds held in trust for the benefit of one of the parties might be taken into account when considering their resources Inherited wealth wouldn’t be taken into account. Only “matrimonial property” is divided between the parties on divorce.
Company assets wouldn’t be taken into account just because it was “family controlled”, although if shares in a company were matrimonial property the value of those shares would be taken into account and shared fairly between the parties.
If Mr Villiers loses his appeal there may indeed be a stampede to raise divorce and/ or maintenance proceedings in whatever jurisdiction may suit each party’s circumstances, although more and more couples are now choosing to deal with their divorce in less contentious ways.
If compromise simply cannot be reached, arbitration can be an attractive alternative.