Irwin Mitchell | Divorce in the UK: A License to Shop

If divorce proceedings between husband and wife are taking place in Scotland, can (and should) an application for maintenance by the wife be heard in England? This was a question which went all the way to the Supreme Court and an answer has now been given.

Charles and Emma Villiers lived in Scotland for much of their married life and were living there when they separated in 2012. Mrs Villiers moved to England and issued a divorce petition in 2013. Mr Villiers then issued his own divorce petition in Scotland in 2014. Under the jurisdiction rules on divorce between England and Scotland, wherever the couple last lived together will be where the divorce is decided. So Mrs Villiers had to concede that her English divorce petition was doomed to failure and withdrew it, allowing Mr Villiers’ to go ahead in Scotland.

However a little later, once she had been living in England for a sufficient period that she could claim she was habitually resident here, she sought an order for maintenance payments. The High Court ordered Mr Villiers to pay maintenance (and Mrs Villiers’ legal fees) and the Court of Appeal upheld the decision.

They reached this conclusion because jurisdiction for maintenance is dealt with separately from the divorce itself. Mr Villiers’ application for a divorce in Scotland made no mention of maintenance, so the Scottish Court was not "seised" with the maintenance issue. Further, the European Maintenance Regulation which determines how maintenance applications are handled as between EU member states also applies, as between the different countries of the UK and this had been expressly incorporated into English law. Therefore England and Scotland were to be treated like two separate EU countries. This meant that the wife had a choice of where to bring her application for maintenance. The husband’s divorce in Scotland did not stop her from doing so and she had lived long enough in England for it to be permissible.

Mr Villiers argued in the Supreme Court that the English court should stay the wife’s claim on the ground that Scotland was the more appropriate place for it to be heard, alongside the divorce (a principle known as "forum non conveniens").

The majority of the five judges in the Supreme Court upheld the Court of Appeal’s decision. They confirmed that the court could not apply the forum non conveniens principle as the EU Maintenance Regulation applied. They stressed the purpose of the EU Maintenance Regulation was to give the maintenance creditor, who is often the weaker party financially, the choice of where to bring the proceedings. However the two most senior family law judges in the country disagreed – Lady Hale and Lord Wilson both of whom have recently retired. Lord Wilson considered that the court did have power to stay Mrs Villiers’ claim on the ground that Scotland was the more appropriate venue because the divorce and the maintenance claim were "related actions". He expressed concern that this decision allows a wife "the untrammelled licence…to go forum-shopping" and "to put her husband at an initial disadvantage unrelated to the merits of her case" because she can bring her maintenance claim wherever she wants.

For Mrs Villiers, this victory in the Supreme Court allows her to pursue her maintenance claim in England where the potential awards available are far more generous than in Scotland, where maintenance is limited. The consequences for others, as Lord Wilson suggests, is that a person seeking maintenance can bring their claim wherever they like in the UK as long as that place has jurisdiction to hear it – it doesn’t matter that another part of the UK might be more appropriate. This might encourage forum shopping in a number of cases, however the EU Maintenance Regulation will no longer apply in the UK after the Brexit transition period is over. So those people whose family affairs straddle different parts of the UK will only have until the end of the year to rely on the current rules.

This is a reminder that EU rules don't just apply between European countries but between different parts of the UK as well, and the rules are going to change in the coming months. Anyone who is getting divorced or contemplating it where there is any kind of cross-border element would do well to take specialist advice as soon as possible.

Published: July 2020

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July 2020

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July 2020

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