A number of cases in the past year have demonstrated that England and Wales remains the jurisdiction of choice for women wanting to divorce their wealthy husbands, and the desperation of the fights that can take place between spouses to try to have the divorce heard here (or elsewhere).
In December 2014 the English Family Court handed down its biggest ever matrimonial award of £337m to Jamie Cooper-Hohn, wife of financier Sir Chris Hohn. Mrs Cooper-Hohn graciously announced to the press that she had decided not to appeal the decision after the court failed to award her half of her husband’s £1bn fortune.
Since the landmark ruling of White v White in 2000, the English court’s attitude has been that there should be no distinction drawn between the contributions made to the marriage by the two spouses, even where one spouse has earned most (if not all) of the money during that period. As a result, spouses who earn large amounts of money during their marriage can normally expect to lose half their assets in the event of divorce. A succession of wealthy and successful businessmen have gone through the courts arguing that their own contribution was so 'stellar' and extraordinary that they should not be subject to an equal division. Most fail, but even those who are successful (including Sir Chris) still stand to lose a significant portion of their wealth.
The attraction of England and Wales as one of the most generous jurisdictions for the financially weaker spouse is the backdrop to the continuing saga of one of the most high profile and publicised divorces of the moment, between Dr Khoo Kay Peng (a businessman worth about £400m) and his wife, a former Miss Malaysia, Pauline Chai.
Establishing jurisdiction where the various possible options are all within the EU is often fairly straightforward. Brussels IIbis provides a checklist of the factors that will give a Member State’s court jurisdiction to hear the divorce, if you can tick one of the boxes, you’re in; if you can’t, you’re out. If there are two Member States that are eligible then it is a simple race to see who can file their application first in their country of choice. Any jurisdictional disputes which then arise usually turn on residency requirements and whether the applicant has actually been a habitual resident in their chosen country for the necessary period of time (six months or twelve months, depending on their domicile, where their spouse is a resident elsewhere).
For couples like Mrs Chai and Dr Peng however, where the choice is between the UK and a non-EU country, timing is not decisive and the court will need to consider issues of forum conveniens. This can lead to huge difficulties, particularly where, as in this case, both courts believed they were the appropriate forum to hear the divorce. By the time the English High Court confirmed that the divorce would take place in the UK the parties had spent some £2.7m in legal fees arguing jurisdiction in both countries.
Deciding where to file divorce proceedings can have profound consequences on the eventual financial settlement and if there are several possible options then it is vital to take advice early in each jurisdiction to ensure that the necessary steps are taken to secure the jurisdiction you want. As the case of Chai v Peng shows, this will not necessarily mean that you will escape a fight. As expensive as the jurisdiction battle was however, with £200m in dispute it is hard to imagine that Mrs Chai does not consider it a fight worth having and money well spent.