Thu 02 Jul 2020

Villiers - family law at its most frustrating and complex?

The Supreme Court handed down its decision in Villiers v Villiers on 1 July, a case dealing with divorce and maintenance between the English and Scottish family courts.

As Lord Wilson commented "One would expect resolution of the issue to be straightforward.  In fact it is absurdly complicated." (para 94)  In case you held out hope for the outcome, after that complicated process, Lady Black firmly quashes such hope: "I entirely understand how frustrating the result might be for those who become involved, in whatever capacity, in litigation within the United Kingdom concerning family finance."  (para 92).

So with that positive start, what does the case say?

The facts

Following their marriage in 1994, Mr and Mrs Villiers lived together in Scotland until 2012.  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.  As he was not seeking any financial orders in favour of himself, he asked the court just to grant decree of divorce (as would be usual under Scottish procedure). 

However, Mrs Villiers then issued an application in England for spousal maintenance, under section 27 of the Matrimonial Causes Act 1973.  Mr Villiers argued that the issue of maintenance should be dealt with in Scotland, along with the Scottish divorce proceedings. He lost that argument both at first instance, and at the Court of Appeal, and then took his case to the Supreme Court.   

The rules

The rules about where you can bring a court action for maintenance come from EU law - the EU Maintenance Regulation.  These rules are then applied between England and Scotland, for intra-UK cases, by virtue of UK internal law. 

As Lord Wilson comments in his dissenting opinion, the application of the EU law between the different parts of the UK in this way does not seem to have been well thought through.  He notes there was a very short and limited period of consultation before these provisions came into force.  The result is that we have two quite different schemes for how to determine which court (either England or Scotland) will deal with matters arising from a separation.  For divorce, the court where the court last lived together "wins".  For maintenance, the court where proceedings are raised first "wins".  These two sets of rules do not sit neatly together, and lead to the real possibility that divorce and division of assets are dealt with in one court, while issues of maintenance are dealt with in another court. 

The appeal

Mr Villiers had various arguments before the Supreme Court, as follows:

  • The English Court should refuse to deal with the maintenance case, on the basis that England was the less appropriate forum to do so.  The principle of the less appropriate forum (or forum non conveniens) is the old law, which would have applied prior to the introduction of the EU Maintenance Regulation (and the implementing UK law).  The majority of the Supreme Court judges were agreed that the introduction of this new law meant that the old option of the less appropriate forum was no longer available. 
  • It was beyond the power of the Secretary of State to remove the "less appropriate forum" principle in this way.  This was a rather innovative argument about the way in which EU law should be implemented within the UK - but was an argument which failed.
  • The English court should view the Scottish divorce as a "related action" in terms of the EU Maintenance Regulation and so allow the Scottish court to deal with maintenance also.  This was the point at which the two dissenting judges differed from the majority of three.  Lord Sale, in the majority decision, was clear that he viewed the two actions as completely separate: "The subject matters of the two sets of proceedings are not connected at all.  The husband seeks a divorce, to end his marital status.  The wife claims maintenance.  It is only her claim which falls within the scope of the Maintenance Regulation."  (para 53).  Lord Wilson took a quite different view, noting that this part of the Regulation was "poorly drafted" and a "broad, common sense, approach" should be taken, meaning that an action of divorce should be considered related to an action of maintenance, so that the two are dealt with in the same place. 

The problems

  • Increased forum shopping.  Lord Wilson points out at the end of his dissenting judgment that the result of this case will be the "untrammelled licence given to a wife to go forum shopping".   The converse way of looking at this is set out in the majority judgment - that a maintenance claimant: "has an unfettered choice in that regard, and is entitled to choose to bring her claim in an English court on grounds of its convenience for her or because she believes that the law it will apply is more advantageous to her."
  • Increased complexity.  The jurisdiction rules regarding divorce between England and Scotland, being based on the last place the couple lived together, are clear and simple.  The interaction between the divorce jurisdiction and maintenance jurisdiction rules are anything but simple. Applying for maintenance in the English system may have a knock on, negative effect as to what can be sought on divorce in Scotland, and so the maintenance claimant would be wise to consider whether this is actually the beneficial step it initially seems.  Spouses will need to have specialist advice from solicitors qualified in both English and Scots law, at an early stage, in order to make informed decisions about their options. 
  • Increased confusion.  Most couples (and indeed most lawyers) would be pretty surprised to discover that, in the eyes of the majority of the Supreme Court, divorce and maintenance are not "related matters".  It is not a decision that seems to bear much relation to how family law cases work in practice, or how couples expect their dispute to be resolved. To add to the confusion, these rules are all likely to change at the end of the transition period for Brexit (being Dec 2020), giving rise to more traps for the unwary, both for separating couples and family lawyers advising them

At Morton Fraser, we have three highly experienced family lawyers dual-qualified in Scots and English law, and so we very often advise on cross-border scenarios, both within the UK and further afield.  If this is something we can assist you wish, please just contact us. 

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