Avoid Forum Shopping Mistakes for Financial Relief After a Foreign Divorce

In a landmark decision that reverberated through the corridors of family law practices across England and Wales.

The Supreme Court this morning handed down a judgment that will significantly alter the landscape for individuals seeking to pursue additional financial relief following a divorce in a foreign jurisdiction.

As a solicitor specialising in family law here in the UK, I feel it’s crucial to share insights on this ruling, particularly for those contemplating England and Wales as a forum for their post-divorce proceedings.

For several years, London has been famously dubbed the “divorce capital of the world,” a title that reflects the English courts’ tendency to award additional financial provisions to individuals divorced abroad. This has especially been the case in matters involving substantial assets, where the financial stakes are exceptionally high. The strategy of “forum shopping,” or selecting a legal jurisdiction believed to be more favorable to one’s case, has been at the forefront of this phenomenon. It involves the claimant asking for permission to bring their case “without notice” to the other party, thereby initially excluding them from representation or even knowledge of the proceedings until an order is made, which they can later contest.

The Supreme Court’s ruling in the case of Potanina v Potanin [2024] UKSC 3 has become a turning point in the discussion surrounding this practice. The applicant argued that the respondent had not fulfilled the necessary criteria to overturn the permission granted for the proceedings. The Supreme Court was faced with a critical question: Should the burden shift to the respondent to contest the decision, or should the court reconsider the case entirely, taking into account evidence from both parties? Opting for the latter, the Supreme Court emphasized that the respondent does not need to provide a “knockout blow” to challenge the permission.

This decision marks a significant departure from the trajectory of prior case law on this issue. The Supreme Court has clarified that the onus remains on the applicant to meet the legal standards for initiating proceedings in England and Wales, even after obtaining permission. This verdict sends a stark warning to those looking to initiate claims in this jurisdiction following an overseas divorce, particularly if they intend to proceed without notifying the other party. Applicants must now be prepared to substantiate their claims thoroughly, including presenting evidence from the respondent and potentially expert testimony on the divorce laws of the originating country.

The ruling not only acts as a deterrent against unprepared or unfounded claims but may also affect London’s attractiveness as a go-to destination for resolving post-divorce financial disputes on an international scale. The requirement for detailed preparation and the prospect of a more rigorous review process could lead to a reduction in the number of applications filed.

The Supreme Court’s decision in Potanina v Potanin is a pivotal moment for family law, particularly regarding international divorce proceedings in the UK. For those of us practising in the UK, it serves as a reminder of the critical importance of meticulous preparation and the need to provide our clients with accurate, strategic advice considering this new legal precedent. This ruling not only underscores the challenges of pursuing additional financial relief after an overseas divorce but also highlights the evolving nature of family law in an increasingly globalized world.