Background
Mr and Mrs Villiers lived together in Scotland throughout their marriage. After separating, Mrs Villiers moved to England and issued a divorce petition in July 2013. Mr Villiers later issued a writ for divorce in Scotland in October 2014. Because the couple last lived together in Scotland, the Scottish courts were assigned the divorce, and the English petition was dismissed.
However, Mr Villiers had not applied for any financial or maintenance orders in his Scottish writ. Mrs Villiers, despite agreeing that the divorce would proceed in Scotland, applied for maintenance in England under s. 27 of the Matrimonial Causes Act 1973, arguing that her husband had failed to provide reasonable maintenance.
Maintenance awards in England are often higher and longer in duration than those granted in Scotland. Mrs Villiers’ decision to apply in England raised concerns about forum‑shopping, prompting Mr Villiers to appeal to the Supreme Court.
Legal issues
The case centred on two key questions:
Firstly, if divorce proceedings take place in one part of the UK, can a maintenance claim be pursued in another?
Secondly, can the court hearing the maintenance claim stay or suspend proceedings on the basis that it is a less appropriate forum than the court handling the divorce?
Mr Villiers’ arguments
Mr Villiers argued that the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (CJJMR 2011), which implemented the EU Maintenance Regulation (Regulation), did not remove the English court’s power to stay proceedings on forum grounds. He contended that the Regulation was intended for international cases, not domestic disputes within the UK.
He also argued that if the English court lacked the power to stay proceedings on forum grounds, then the Scottish divorce and English maintenance claim should be treated as “related actions”. If so, the English court could stay proceedings on that basis.
Supreme Court decision
The Supreme Court dismissed the appeal by a majority of 3 to 2.
Majority reasoning
The Court held that the CJJMR 2011 mirrored the Regulation’s approach to jurisdiction. Under the EU scheme, where more than one country has jurisdiction, priority is given to the court “first seised” of the matter. The second court may stay proceedings only if the actions are related.
The Court concluded that the same “first in time” rule applied within the UK. If a spouse applied for maintenance in England before proceedings were issued elsewhere, the English court must hear the case.
The Court also held that the English maintenance claim and Scottish divorce writ were not “related actions” under the Regulations. As a result, the English court had no power to stay proceedings on the basis that Scotland was a more appropriate forum.
For Mr Villiers, this meant the case returned to the High Court for a judge to determine the level and duration of maintenance.
Dissenting opinions
Lady Hale and Lord Wilson dissented. They argued that:
Firstly, the majority adopted an unduly narrow interpretation of “related actions”. In their view, the Scottish divorce and English maintenance claim were related, allowing the English court to decline jurisdiction.
Secondly, even if the actions were not related, the power to stay proceedings on forum grounds was not incompatible with the CJJMR 2011.
Analysis
The decision has clear benefits for applicants seeking maintenance.
It allows them to pursue claims in whichever UK jurisdiction offers the most favourable outcome. However, the ruling also raises concerns about forum‑shopping. Lord Wilson warned that the decision effectively grants “a licence to a wife to go forum‑shopping… to put her husband at an initial disadvantage”.
The ease of establishing habitual residence in England and Wales further increases the likelihood of forum‑shopping. A spouse who moves to England and severs ties with Scotland may quickly become habitually resident and eligible for higher maintenance awards.
The decision’s long‑term impact is limited by Brexit. The CJJMR 2011 were repealed on 31 January 2020. After the implementation period ended on 31 December 2020, the UK reverted to pre‑2011 rules. Courts once again have the power to stay maintenance proceedings on forum grounds, and the “first in time” rule no longer applies. The licence to forum‑shop has effectively been withdrawn.
Conclusion
Villiers v Villiers clarified the jurisdictional approach to maintenance claims under the 2011 Regulations, but its effects were short‑lived.
The case remains significant for its exploration of forum‑shopping and the tension between UK jurisdictions. As the post‑Brexit framework reintroduces forum discretion, future cases will likely revisit these issues under a different legal landscape.
Not sure how close you are to qualifying?
The path-fit quiz reads your situation and shows you which routes you are ready for, and exactly what to do next. Four minutes, no account needed to start.
Check your readiness