Supreme Court judgement in Villiers case permits English maintenance claim in parallel with Scottish divorce

On 1 July 2020, the Supreme Court handed down their much-awaited judgement in Villiers v Villiers, a case dealing with jurisdiction in intra-UK divorce and maintenance claims.

In this blog, I examine the facts of the case, the surrounding law, the Supreme Court’s decision and the legal implications of this.

Villers – the facts of the case

The parties had lived almost the entirety of their married life in Scotland. Following their separation, the wife moved to England with the parties’ daughter and she issued a divorce petition in the English Courts. This was later dismissed with the wife’s consent in favour of the writ of divorce which the husband had issued in Scotland. The husband did not apply for any maintenance or financial orders from the wife in his Scottish divorce writ (which he is prohibited from doing under Scottish law).

Even though the wife accepted that the divorce would take place in Scotland, in January 2015 she made an application under section 27 of the Matrimonial Causes Act 1973 (MCA) in England seeking maintenance from the husband under the ‘failure to maintain’ provision, and which can be used even if there are no divorce proceedings in England and Wales (although rarely is in practice).

The wife could have applied for maintenance and other financial orders within the Scottish divorce proceedings. She chose not to, as this would have invariably resulted in a ‘less generous outcome’; in general, a court in England will award maintenance of a higher amount and for a longer duration than a court in Scotland. The wife made a tactical choice to sue in a court which she hoped would give her a better outcome, a move known as ‘forum shopping’.

The husband argued that the English Court did not have jurisdiction to deal with this application. At first instance, at an interim hearing, Parker J considered that the English Courts did have jurisdiction and made an order that the Husband pay the Wife £2,500 per month in interim maintenance as well as £3,000 per month for legal funding. The Court of Appeal upheld this order. The husband subsequently appealed to the Supreme Court.

The husband argued, among other things, that:

1. section 27 only applies in international cases, and not intra-UK cases such as this.
2. the divorce proceedings in Scotland and the maintenance claim in England were related actions, therefore the English court should have declined jurisdiction under EU law or in the alternative;
3. that the doctrine of forum ‘non conveniens’ applied intra-UK in maintenance claims, arguing that an English court has the discretion to stay (suspend) proceedings in England if Scotland was found to be the more appropriate jurisdiction.

Section 27 of the Matrimonial Causes Act

Section 27 of the MCA, as amended, provides:

1. Either party to a marriage may apply to a court for an order under this section on the ground that the other party to the marriage:
   1. has failed to provide reasonable maintenance for the applicant, or
   2. has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family.

The key question is whether the respondent (paying party), within their means, has paid the applicant (receiving party) reasonably for the applicant’s (or child’s) maintenance, taking into account the applicant’s (or child’s) own resources.

What is reasonable will depend on the specific circumstances of the case.

A party to a marriage may not be reasonably maintaining the other party or any child of the family because:

• they cannot i.e. they do not have the means and are not reasonably in a position to remedy,

or

• they will not i.e. they have the means, or they refuse to obtain them when they are reasonably available so that they fail to provide reasonable maintenance for the other party and fail to provide or to make a proper contribution towards the reasonable maintenance for any child of the family.

Only in the latter circumstances, if there is such a failure to maintain, may relief be sought by either party to a marriage.

Orders made under s.27 of the MCA can run beyond the parties’ divorce.

Jurisdiction

Jurisdiction for an application under s.27 of the MCA derives from the EU Maintenance Regulation (which deals with jurisdiction across the different member states of the EU) and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (which applies the Maintenance Regulations to different parts of the UK).

Article 3 of the Maintenance Regulation, which contains the general provisions as to jurisdiction, provides that jurisdiction shall lie with:

1. the court for the place where the defendant is habitually resident; or
2. the court for the place where the creditor is habitually resident; or
3. the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person (i.e. divorce) if the matter relating to maintenance is ancillary to those proceedings unless that jurisdiction is based solely on the domicile of one of the parties; or
4. the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility (i.e. with whom a child lives and/or spends time) if the matter relating to maintenance is ancillary to those proceedings unless that jurisdiction is based solely on the domicile of one of the parties.

Article 13 of the Maintenance Regulations permits a court to decline jurisdiction where there are related actions ongoing in another member state or, as in this instance, in another part of the UK.

What was the Supreme Court’s decision in Villiers?

The Supreme Court, in a split decision, dismissed the appeal of the husband.

In the leading judgement, Lord Sales sets out the following:

1. 27 of the MCA does not require that both the Maintenance Regulation and Schedule 6 apply, confining its use to international cases only. As such, the Court was entitled to make an order under this provision.
2. Divorce proceedings and claims for maintenance are not related actions for the purpose of Article 13 of the Maintenance Regulations; each action has different jurisdictional rules under EU law. Having proceedings for divorce and maintenance in two separate jurisdictions will not lead to irreconcilable judgements.
3. The English Court does not retain any discretionary power to stay proceedings on forum non-conveniens ground; the Maintenance Regulation sets out clear and binding rules regarding jurisdiction, which aims to afford special protection to a maintenance creditor by giving him or her the right to choose jurisdiction. Schedule 6 replicates the scheme of the Maintenance Regulation in domestic law for intra-UK cases.

As such, applicants to maintenance under s.27 of the MCA, have a right to bring a claim where they live, and that the English Courts do not have the power to refuse to hear the claim on the basis that another UK Court is seized of the divorce only or may be considered to be a more appropriate forum.

Practical implications

This was the first intra-UK Maintenance Regulation case to be heard by the Supreme Court and the only divorce/finance case to be heard by the UK Supreme Court in 2019.

The outcome allows for the possibility of court actions for divorce/other financial matters and maintenance running in parallel in two separate jurisdictions. Lord Wilson, who gave a dissenting judgement, said that this would result in 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’ (para [180])

To get access to the higher and longer awards of maintenance from the English Court, the applicant must be habitually resident in England and Wales. However, there is no requirement to be habitually resident in England and Wales for any specified period of time.

Consequence of Brexit

As a result of Brexit, the 2011 Maintenance Regulations remain in force until 31 December 2020, the end of the implementation period (which the government have (so far) said will not be extended). For proceedings issued in 2021, the Courts of England and Wales will again have the power to stay maintenance proceedings on the basis that the Court is the less appropriate forum. The freedom of maintenance creditors to forum shop will be once again be curtailed.