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Multi-Million Investment Banker Divorce Tests Habitual Residence Rules

Thursday, 1 May 2014

The Court of Appeal recently held that a multi-million pound international divorce case between a stay at home dad and his investment banking wife could be heard in the UK.

Weng Choy, originally from Hong Kong, filed for divorce from his wife Lena Tan, originally from Malaysia, in 2012 after a row on New Year’s Eve.

The couple had amassed assets of around £11m during the course of their marriage, primarily through Ms Tan’s work for a hedge fund.

The English courts have a reputation for generosity when it comes to dividing marital assets so a battle for jurisdictional advantage was perhaps inevitable.

Background to Tan v Choy [2014]

Lena Tan and Weng Choy had been married for 15 years when their relationship broke down at the end of 2011. During that period Ms Tan had had a highly successful career working for a hedge fund while Mr Choy had given up his job as a banker to become a stay at home dad.

According to Mr Choy, his decision to give up his career had been taken in order to enable his wife to succeed in her career. In doing so he had elected to look after the couple’s two sons who were born in Malaysia but educated at boarding schools in England.

Over the course of their marriage the couple had bought a flat in Kensington thought to be worth around £4.5m and built up a variety of other assets, bringing the total to around £11m. The couple also maintained homes in Hong Kong and Malaysia.

In 2012, Mr Choy filed for divorce in England but Ms Tan sought to block the divorce on the basis of jurisdiction, in order that she could bring proceedings in Malaysia instead. In March 2012, a High Court judge held that the husband had been ‘habitually resident’ for at least a year in England before filing for divorce so the case could be heard.

Ms Tan appealed the original decision of the High Court but the Court of Appeal dismissed her appeal.

‘Habitual Residence’

The basis for jurisdiction in this case relied upon Council regulation (EC) No 2201/2003 (Brussels II) at Article 3(1) (a) which provides that “in matters relating to divorce…jurisdiction shall lie with the courts of the Member State (a) in whose territory…the applicant is habitually resident if he or she has resided there for at least a year immediately before the application was made”. 

The appellant did not dispute the facts used by the High Court in its judgement but challenged the judge’s interpretation of ‘habitually resident’ in evaluating those facts. The Court of Appeal held that the lower judge did not “misconstrue” the meaning of habitual residence.

Lady Justice Macur stated, “That he chose one interpretation of those facts over another does not make it wrong in the absence of a verifiable misconstruction of the evidence whether by factual mistake or omission to take into account material information that indisputably undermines the essential premise.”

If you would like to discuss the implications of this case or you need advice in relation to other family law issues, Rollingsons has experienced solicitors who can advise you; please contact Jeetesh Patel via e- mail JPatel@rollingsons.co.uk or by telephone on 0207 611 4848.

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