Rules about where a couple lives during a marriage as well as EU divorce regulations mean that estranged husbands and wives often have a choice about where to divorce. And because courts in each country approach maintenance and financial settlements in their own way, the outcome of the divorce can be very different depending on where the case is heard. As a result, so-called jurisdiction races between spouses to secure the best forum for a divorce aren’t uncommon.
When it comes to maintenance orders – as opposed to financial settlements more generally – a spouse can ask the family courts in England to make a maintenance order even when the main divorce case is being heard elsewhere (section 27 of the Matrimonial Causes Act, 1973). Fairly straightforward if two international jurisdictions are involved.
But what if the divorce involves the courts of two nations within the U.K? There had been a body of opinion that maintenance claims within the UK could only be made to the courts in the same jurisdiction as the divorce proper was being heard (i.e. to the courts of England and Wales, of Northern Ireland or of Scotland). However in the case of Villiers v Villiers, decided in July 2020 the Supreme Court rejected that view. It confirmed that a spouse can apply to the courts of England and Wales under section 27 even when the divorce proper is being decided in another part if the UK. There doesn’t need to be an international dimension to the case.
Villiers v Villiers – the background
Mr. and Mrs. Villiers had married in 1994 and separated in 2012. Mrs. Villiers then moved to England where she had grown up. Despite issuing a divorce petition in England Mrs. Villiers had to agree to the Scottish courts hearing the divorce. (The rules state that when there are competing divorce jurisdictions within the UK the country where the couple last lived together – in this case Scotland- should have jurisdiction). From her financial point of view this was less than ideal – Scottish courts have a much more restrictive approach to spousal maintenance than the courts in England.
Where can I seek a maintenance order?
While the Scottish courts had clear jurisdiction to hear the divorce, the rules about where a spouse can seek a maintenance order differ. Under the Matrimonial Causes Act mentioned above (and the related EU Maintenance Regulations 2011) Mrs. Villiers legal team believed it was open to her to ask the English courts to make a maintenance order. That was because when the EU rules came into force in the UK they applied not just between the courts of different EU countries but also between the courts of each part of the UK.
Happily for Mrs. Villiers the Supreme Court agreed. The English courts could decide the issue of spousal even though the Scottish court would determine the divorce itself and how the matrimonial assets would be divided.
In Scotland spousal maintenance commonly ends on divorce. The situation in England is quite different, favouring the spouse seeking maintenance. In England maintenance is often ordered to run indefinitely. In Scotland this happens only in exceptional cases of financial hardship.
Mrs. Villiers was clearly trying to get the best maintenance settlement she could and legitimately used the existing rules to engage in forum shopping. We’ve discussed divorce tourism before, usually in the context of international divorce. But Villiers shows how – even within the UK – issues about jurisdiction can arise. At a time when family courts are under pressure as never before it’s questionable whether two UK courts should be involved in deciding the financial settlement following the breakdown of a marriage. It increases cost and introduces delay for all concerned. Whether the UK government uses Brexit to review the rules on maintenance orders remains to be seen.
At Brookman we deal regularly with the type of jurisdictional issue around divorce raised in the case of Villiers. If you’d like advice on where to start your divorce or need guidance on how to apply for a maintenance order in England and Wales please call on 44 (0) 20 7430 8470 or contact us online.