Villiers v Villiers [2020] UKSC 30

By Emily Watts

The case concerns a UK jurisdictional issue regarding maintenance claims upon divorce. If a divorce case is being heard in one part of the UK, should the maintenance claim be held in the same jurisdiction?

Facts:

Mr and Mrs Villiers spent their married life in Scotland. Upon separation, Mrs Villiers returned to England and issued a divorce petition in July 2013. Mr Villiers issued a writ for divorce in Scotland in October 2014. As the parties last lived together in Scotland, the divorce proceedings were assigned to the Scottish courts and the English petition was dismissed.

However, Mr Villiers had not made any maintenance or financial orders in his Scottish divorce writ. Mrs Villiers despite agreeing that the case would take place in Scotland, still applied for a maintenance order in England under s.27 of the Matrimonial Causes Act 1973. This permitted her to make an application for an order because Mr Villiers had failed to present reasonable maintenance for her.

It is generally known that a maintenance order granted by the English court is often higher and for a longer period than a court in Scotland. Mrs Villiers could have been ‘forum-shopping’ where she makes an informed decision to use the English courts because it would give her a better outcome.

Mr Villiers was appealing to the Supreme Court to not permit this.

Legal Issue:

If a couple are divorcing in one part of the UK can the maintenance claim be decided in a different part of the UK?

Can the court that is dealing with the maintenance application (in another part of the UK to the divorce proceedings) be able to stay/or suspend the proceedings on the grounds that it is a less appropriate forum than the court that is already dealing with the divorce proceedings?

Mr Villiers’ argument:

It was argued that the Civil Jurisdictional and Judgments (Maintenance) Regulations 2011 (the 2011 Regulations) which enforced the EU Maintenance Regulation 2011, did not remove the power of the court to stay or suspend a maintenance case on the grounds that the court was a less appropriate forum. The reason being that this Regulation was only concerned with international cases rather than domestic.

It was also argued that if it was held that the English court did not have the power to stay proceedings on the basis of a less appropriate forum, then the Scottish divorce case and the English maintenance case were ‘related actions.’ Therefore, the English court could stay proceedings on this ground.

Decision:

The appeal by Mr Villiers was dismissed by the Supreme Court on a majority of 3/2.

Majority:

It was held that the 2011 Regulations (dealing with maintenance disputes within the UK) mirrored the scheme under the EU Maintenance Regulation 2011 for deciding which court had jurisdiction where two were involved. For example, in the international context, if more than one EU country had the ability to hear the case the Regulation gives priority to the court where the case had been issued first. The second court could stay proceedings if there was a related issue in another EU country.

The Supreme Court decided that the 2011 Regulations would follow the interpretation of the corresponding terms in the EU Regulation. Therefore, it was held that where more than one part of the UK had the ability to hear the case this ‘first in time’ rule applied. This means that if the person applied first in England, even by a day, the case had to go ahead in England.

Additionally, the English maintenance claim and the Scottish divorce writ were not ‘related actions’ within the meaning of the EU Maintenance Regulation or the 2011 Regulations.

The decision to include the ‘first in time’ rule in the 2011 Regulations and the related actions provision meant that there was no longer any power to stay maintenance proceedings on the ground that the court was a less appropriate forum than a court in another part of the UK.

For Mr Villiers that means, the case would go back to the High Court for a judge to decide how much maintenance he should pay and for how long.

Dissent:

Lord Wilson and Lady Hale were the two in the minority. They viewed that:

The majority had been wrong in seeking to restrict the concept of related actions so that both claims must concern maintenance to be related. Under EU law the concept of ‘related actions’ was broad and they were related actions so the English Court could decide not to continue with the English Maintenance case.

However, if they were wrong about the wide scope of related actions power they would have held that the less appropriate forum power to stay proceedings was not incompatible with the 2011 Regulations.

Analysis:

Whilst there are clear benefits to this decision for those who are applying for maintenance orders by being able to use any jurisdiction. It is important to recognise the overarching effect this could have on divorce proceedings.  For example, Lord Wilson highlighted that a ‘licence is [being] given to a wife to go forum-shopping… to put her husband at an initial disadvantage’.

Additionally, it is easier to have access to forum-shopping because the requirement to be a habitant of England and Wales to be entitled to an award of maintenance does not have a time limit. Therefore, if someone was to sever all ties in Scotland and go to live with family in England, they would be considered a habitant almost immediately and able to get higher and longer awards of maintenance from the English Court. .

Interestingly, because of Brexit the 2011 Regulations were repealed on exit day 31^st Jan 2020. However, due to the implementation period as of the 31^st December 2020 the clock will go back to 2010 and for 2021 proceedings the court will again have the power to stay maintenance proceedings on the basis that the court is the less appropriate forum. The ‘licence’ to forum-shop will be no longer be present.