Mon 13 Jul 2020

Divorce - what is fair?

Not many of us have travelled very far for the past few months, and a holiday abroad still seems some way off.  But the Supreme Court handed down a decision last week in a case which raised the prospect of a different type of trip - divorce tourism. 

The case of Villiers v Villiers deals with a clash between the English and Scottish courts, regarding which should deal with the financial end of a marriage.  It is a case which raises big questions about what is fair, in both the Scottish and English systems for divorce, and in how to decide which court should deal with a couple's separation. 

Mr and Mrs Villiers had lived in Scotland throughout their marriage, but on separation, Mrs Villiers moved to England. She sought to raise divorce proceedings in England, but these were dismissed. 

This is because in circumstances where divorce can be dealt with either in the Scottish or English courts (e.g. where one spouse lives north of the border, and the other lives south) the usual rule is that the last place the couple lived together has precedence to deal with the divorce.  Mr Villiers accordingly raised divorce proceedings in Scotland. 

Mrs Villiers then asked the English court to grant an order for maintenance for her.  The rules about which court should deal with maintenance are different, coming from an EU Regulation.  This Regulation applies between different EU Member States, but the UK Government decided to apply the same rules between the different parts of the UK.  These rules allow the person claiming maintenance to apply to either the court in the place where they are living, or where the paying person is living, or the court that is dealing with matrimonial matters.  Unlike divorce, there is no rule about giving precedence to the last place the couple lived together.

Mr Villiers argued that the issue of maintenance should be dealt with in Scotland, along with the Scottish divorce. He lost that argument and appealed his case all the way to the Supreme Court.  Three of the five Supreme Court judges agreed with Mrs Villiers, and so the English court will decide on maintenance, while the Scottish court will deal with the divorce and division of assets (but not maintenance). 

Why go to all this bother?  In short, the English court is usually more generous to claimants on divorce than the Scottish court, particularly in relation to maintenance.  Child maintenance is dealt with in exactly the same way throughout the UK, but the level and length of maintenance for a spouse is quite different between the Scottish and English systems.  Is this difference "fair"? 

More often than not, spousal maintenance ends on divorce in Scotland, although maintenance can continue for up to three years after divorce or (in unusual circumstances, and in cases of extreme hardship) indefinitely.  In England, it is far more common for maintenance to continue for a longer period after divorce, or sometime for the joint lives of the spouses.  England is known as the "divorce capital of the world" for its generous payments to claimants. 

So is the English system too generous - or does this judgment highlight a deficiency in the Scottish system?  Should Scottish judges and legislators take this as a prompt to review how best to protect the weaker financial party on divorce? 

The second issue of fairness highlighted by the case relates to the rules linking a separating couple to a particular legal system.  In my view, there is a need for careful and considered reform of the jurisdiction rules for divorce. 

Should our system allow "divorce tourism", where a spouse could deliberately move to try to benefit from English laws, when all other links in the couple's life and marriage are to Scotland?  Does it really make sense to have the complexity and expense of split cases, where more than one court is involved in the financial fall-out from breakdown of the marriage?  The rules on jurisdiction for family law will be reviewed this year, being the end of the transitional period for Brexit - giving the perfect opportunity to craft fair and predictable rules for Scottish separating couples, whether they have links to England or further afield.  We will see if that opportunity is taken. 


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