The long-awaited Supreme Court judgment in the case of Villiers v Villiers [2020] UKSC 30, was handed down on 1 July 2020. This case decided whether the English Court has jurisdiction to make an order for maintenance under Section 27 Matrimonial Causes Act 1973 in a case with no international dimension and if so, whether the English Court should give priority to the Scottish Court to deal with financial issues, where divorce proceedings are ongoing in Scotland. The issues relate to the Maintenance Regulation (Council Regulation (EC) of 4/2009 on jurisdiction, applicable law, recognition and enforcement of decision and cooperation in matters relating to maintenance obligations).
Charles Villiers and Emma Villiers lived near Dumbarton, Scotland, and separated after 18 years of marriage in September 2012. The divorce “writ” was issued by Mr Villiers in Scotland on the basis of two years separation. Mrs Villiers moved to England in 2013 and had issued divorce proceedings in England which were then dismissed.
In January 2015 Mrs Villiers made an application under Section 27 Matrimonial Causes Act 1973 for interim maintenance and a costs allowance for legal fees. Mr Villiers challenged this through the English High Court, which ordered maintenance to be paid. He stated that the English Court did not have jurisdiction to hear that application. Mrs Villiers claimed that the dispute over the division of assets should take place in England, where the sums and duration of orders for maintenance are far more generous. Mr Villiers then unsuccessfully appealed against the decision to the Court of Appeal.
The appeal to the Supreme Court related to jurisdictional issues. By a majority, the Supreme Court dismissed the appeal. Lord Sales, giving the lead judgment, said that EU legislation which deals with jurisdiction in cross border cases treats marital status and maintenance obligations as separate matters for the purposes of jurisdiction. Lord Sales also held that the Court of a Member State did not retain any discretionary power to stay proceedings on “forum non conveniens” grounds, in line with the EU case law. Further, Lord Sales found that, “the divorce proceedings brought by the husband in the present case is not related to the wife’s maintenance claim” and that therefore it is not a “related action” within Article 13 of the Maintenance Regulation meaning that the English Court is not permitted to decline jurisdiction. This mirrors the remarks made by Lady Justice King in the Court of Appeal [2018] EWCA Civ 1120, who stated that, “the divorce proceedings in Scotland relate only to the status of the parties… there is no application for aliment/ maintenance or any other form of financial relief made by either party” and that it is therefore “ it is hard to see how separate applications respectively in relation to status and for maintenance can be related”.
It is important to note that this case relates to a freestanding application for maintenance under Section 27 and that, furthermore, the husband did not include, within his writ of divorce in Scotland, any prayer for any financial order. Indeed in a dissenting judgment Lord Wilson advised a “broad commonsense approach” to the interpretation of Article 13.
The Supreme Court has acknowledged that, “Forum shopping is often regarded as being unattractive in family proceedings”, but only time will tell whether this case will be confined to its facts or whether it will encourage wives to try to claim more generous maintenance provision in this country.
https://www.supremecourt.uk/cases/docs/uksc-2018-0114-judgment.pdf