Can maintenance claims in England & Wales be heard if divorce proceedings are in Scotland?

4th August ‘20

In early July, family lawyers waited in anticipation for the Supreme Court judgement from the case known as Villiers v Villiers, which was arguably one of the most high-profile judgements in 2020 for family law.

The context

Mr Villiers (“the husband”) and Mrs Villiers (“the wife”) spent nearly all their married life in Scotland. When their marriage came to an end the husband continued to live in Scotland, whereas the wife moved to England. The husband issued divorce proceedings in Scotland (known as a divorce writ) and the wife issued the same application but in England.

It is worth mentioning in the United Kingdom there are three legal systems: Scotland, Northern Ireland and England & Wales. Each legal system has a different approach to family law. Having said this, the laws of England & Wales and Scotland complement each other when it comes to determining which of two competing divorce applications should proceed. As a consequence of this, the wife had to accept that her application for divorce should be dismissed and the divorce granted in Scotland.

As part of the husband’s application in Scotland he did not apply for any financial orders from the wife. The wife however did apply at the family court in England & Wales for a maintenance order under section 27 of the Matrimonial Causes Act 1973 (“MCA 1973”).

Why did Mrs Villiers apply for a maintenance order in England & Wales when the divorce proceedings were heard in Scotland?

Section 27 of the MCA 1973 allows the family court to make a maintenance order if one party has failed to provide reasonable maintenance to their spouse or make a proper contribution towards reasonable maintenance for any child of the family. This section of the law can be relied upon even when there are no divorce proceedings in England & Wales. What is reasonable will depend on the facts of each individual case but certainly the financial resources of the paying party and their ability to pay will be a key factor.

Jurisdiction for an application under section 27 of the MCA 1973 stems from the EU Maintenance Regulation (covers jurisdictions from member states of the EU) and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, which allows the Maintenance Regulations to apply to different parts of the United Kingdom.

The default position for establishing jurisdiction for making decisions relating to maintenance can be found in Article 3 of the Maintenance Regulations, which states that jurisdiction shall lie with the court where (a) the defendant is habitually resident; or (b) where the creditor is habitually resident; or in the court with jurisdiction to entertain proceedings as to (c) the status of a person (i.e. marital status) or (d) parental responsibility (having legal responsibility to a child), where the maintenance is ancillary to those proceedings (unless jurisdiction is based solely on nationality).

Where there are “related actions” in two member states, Article 13 of the Maintenance Regulations does permit a court to decline jurisdiction if the court first seised, has jurisdiction over the related action and can consolidate those actions. The relevance of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 will become clear further on in this article.

Turning back to Villiers, it is still the case that the wife could have applied for financial orders in Scotland but she chose not to do so because, I suspect, she was advised that is was very likely a family court in England & Wales would order a more generous award when it comes to maintenance when compared to Scotland.

Thus, the approach taken by wife was purely tactical and is known as ‘forum shopping’ because she picked the legal system that would best suit her case when it came to the finances.

Why did this case go the Supreme Court?

The husband argued that the family court in England & Wales did not have jurisdiction to deal with the wife’s maintenance application. At first instance, Mrs Justice Parker disagreed with the husband and at an interim hearing she ordered that the wife should receive from the husband £2,500 per month in interim maintenance and £3,000 per month to support her legal fees.

The husband appealed to the Court of Appeal who refused to overturn the decision made by Mrs Justice Parker. The husband therefore sought permission to appeal to the Supreme Court which the Supreme Court allowed. In simplifying the legal issues of the appeal, it was the Husband’s case that:

  1. It was normally wrong that if a couple divorcing in one part of the UK can use another legal system in the UK to deal with financial and maintenance issues.
  2. Where a situation does arise whereby a party is seeking maintenance from a court in one UK legal system, whilst the divorce is taking place in a different legal system in the UK the maintenance application should be suspended on the grounds that the legal system dealing with the divorce would be the more appropriate forum to deal with the issue of maintenance.

The judgement in the Supreme Court                                                                                

By a majority (3:2), the Supreme Court dismissed the husband’s appeal meaning the wife could proceed with her maintenance claim in England & Wales. Interestingly the two judges who dissented part of the decision, Lord Wilson and Lady Hale, both had a previous practice in family law.

Lord Sales gave the leading judgement, concluding:

  1. Section 27 of the MCA 1973 does not require that both the Maintenance Regulation and Schedule 6 apply meaning an application under this section does not apply just to international cases. Thus, section 27 can apply to two legal systems within the UK.
  2. Because divorce proceedings and claims for maintenance have different jurisdictional rules in accordance with EU Law this meant these actions are not related for the purpose of Article 13 of the Maintenance Regulations, which as explained earlier, would have allowed the court in England & Wales to stay or decline jurisdiction.
  3. Since the Maintenance Regulation has clear and binding rules concerning jurisdiction, the purpose of which is to offer special protection to a party seeking maintenance by giving them the right to choose jurisdiction, the family court does not retain any discretionary power to stay proceedings on forum non-coveniens. The same position applies in domestic law for intra-uk cases since Schedule 6 replicates the Maintenance Regulation.

Lord Wilson, one of the dissenting judges, was of the view the Scottish and English proceedings were “related actions” for the purpose of Article 13 of the maintenance regulations. His view had it been the majority would have given the family court in England & Wales the power to stay or decline the wife’s application for maintenance under section 27 of the MCA 1973.  As put by Lord Wilson himself, the decision of the Supreme Court meant an ‘untrammelled licence [being] given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of the case’.

What does the judgement mean?                                                                                                   

The decision of the Supreme Court means that if a party wants to make a claim for maintenance against their spouse in the jurisdiction in which they live, they can do so even if divorce proceedings are secured in another legal system of the UK.  A court in England & Wales therefore does not have the power to refuse to hear an application for maintenance because another UK court has jurisdiction on the divorce only, or that it may be a more appropriate to hear both actions in the same court.

Some would argue the decision of the Supreme Court was wrong because it does not seem right that one legal system can deal with the divorce, but another system handles the financial consequences of that divorce. This scenario would also ultimately lead to each party having to instruct a lawyer to represent them in each jurisdiction increasing their legal fees.

However, despite these criticisms, there is also the perspective of those spouses who are in a weaker financial position – there is the option for them to be more fairly compensated financially for their contribution to the marriage from the legal system in which they live if that is different to where the divorce is taking place.

The decision of the Supreme Court certainly continues the global perception that the England & Wales legal system is one of the most generous in the world for the party in a weaker financial position, when it comes to dividing assets because of divorce.

As a result of Villiers, in cases where there is a link between England and Scotland, I would likely advise the weaker financial party, when served with a Scottish writ for divorce, to consider issuing a financial order in England before the more wealthy spouse secures jurisdiction in Scotland on the finances.

For the wealthier spouse, lodging an application for a financial order, via the Scottish legal system at the same time as a divorce application in the same jurisdiction would serve their best interests; it seems to ensure Scotland seizes jurisdiction on both the divorce and finances thereby preventing a claim for maintenance in England & Wales. This is what Mr Villiers failed to do and, as consequence, he is now a party to a maintenance application in the family court in England & Wales.

If you require support or guidance, do not hesitate to contact Naheed Taj – Naheed is Head of Family at Calibrate Law.

This post is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice.

This article was originally writeten by Marc Etherington.

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