The Supreme Court has this morning given a long-awaited decision which has significant implications on those seeking to bring proceedings in England and Wales having already been divorced in another country. For several years now London has been given the tag line of “divorce capital of the world”, with the courts frequently providing additional financial provision to those already divorced elsewhere. The cases that have been at the forefront of this “forum shopping” approach have tended to be those where the assets in question are significant, and the stakes are high.
As is often the situation in these cases, the spouse seeking additional relief will ask for permission to bring their claim on a “without notice” basis, meaning that the responding spouse is not represented or even aware of the court hearing. If an order is made then the respondent should then have the opportunity to challenge the original decision.
In the case of Potanina v Potanin  UKSC 3 (full judgement available here), the applicant argued that the respondent had not met the test to overturn the decision to grant permission. The question for the Supreme Court has been whether, with permission having been given to bring proceedings, the burden is on the respondent in seeking to overturn that decision. Or, as perhaps seems a more logical approach, the court should consider the issue afresh with evidence from both parties. The Supreme Court have decided the latter, commenting that the respondent does not need to demonstrate a “knockout blow”.
Contrary to the development of case law on this issue, the Supreme Court have today made clear that the burden remains with the applicant even once permission is granted. The clear message of this decision is that for those looking to bring proceedings here after an overseas divorce, the burden remains on them to meet the necessary legal test. Even if permission is granted applicants should be prepared to have the validity of their claim looked at afresh, with evidence from the respondent and likely expert evidence from the country of the original divorce. This may result in fewer applications and certainly sends a warning message to those looking to bring applications on a without notice basis without full and thorough preparation. Time will tell on whether this decision will impact on London’s position within the international divorce market.