The case of Mr and Mrs Villiers has reached a conclusion this week in the Supreme Court, with Mrs Villiers ultimately victorious as Mr Villiers failed to win his appeal. For the implications of this to be clear, it is helpful to look at all of the facts of the case in the first instance.
The parties married in England in 1994, however, they thereafter lived together in Scotland for most of their marriage. That was until they separated in 2012. Upon separation, Mrs Villiers returned to England and has lived there ever since. And so begins a legal battle which has now been ongoing for some 7 years.
This was kicked off with Mrs Villiers issuing a ‘divorce petition’ in the English Courts in July 2013. Mr Villiers thereafter issued an Initial Writ in Scotland for divorce in October 2014. Said Writ only asked for the parties to be divorced and did not include any financial orders – in particular, it was silent on maintenance. This may have been due to the fact that a party cannot ask the Scottish Courts to make an order against him or herself, and Mr Villiers would not have had the ability to ask Mrs Villiers for maintenance given their respective financial standing. Ultimately, the absence of a request for the Scottish Courts to deal with maintenance would lead to the decision that was issued this week by the Supreme Court.
Now, the application for divorce did require to be dealt with by the Scottish Courts. The Domicile and Matrimonial Proceedings Act 1973 states that divorce should be dealt with by the court where the parties last lived together as husband and wife. Mr and Mrs Villiers last lived together as husband and wife in Scotland, and so the divorce is to be dealt with there.
Mrs Villiers agreed with this assessment and consented to the dismissal of her petition for divorce in the English Courts. However, at the same time as doing this, she issued her application to the English Courts under Section 27 of the Matrimonial Causes Act 1973 for maintenance payments to be made to her by Mr Villiers.
Mrs Villiers would have been keen to raise proceedings in England on the basis that England is, historically, exceedingly more generous to the spouse in a financially weaker position, than we are here in Scotland. Mr Villiers, equally aware of the financial implications for him if maintenance were dealt with South of the border, would’ve been keen to have the matter of maintenance dealt with by the Scottish Courts.
On this basis, Mr Villiers appealed on the issue of jurisdiction, and ultimately, on the interpretation and effect of Schedule 6 to the Civil Jurisdiction and Judgements (Maintenance) Regulations 2011 (SI 2011/1484) and interpretation and effect of Council Regulation (EC) NO 4/2009.
Mr Villiers argued that these Regulations should not be enacted in this matter as it was an issue between two parts of a single member state, and that the EU Regulations should only be used where there is a jurisdictional debate between two different member states.
He also argued that the divorce action and the maintenance application were related and therefore the English Courts should allow the Scottish Courts to deal with both matters on the basis that it was a more appropriate forum in Scotland.
Ultimately, the Supreme Court decided that the EU Maintenance Regulations did apply intra-UK where there was more than one part of the UK with the ability to hear the case, and so the first in time rule applied. I.e. the court first asked to deal with the matter would require to do so. And because the divorce action and the maintenance action were deemed to not be related actions within the EU Maintenance Regulations or the 2011 Regulations, the English Courts cannot stay any maintenance proceedings in favour of the Scottish Courts.
Therefore, the English Courts had to deal with the maintenance part of this. And the Scottish Courts the divorce part. Given the disparity in how the two courts deal with maintenance for spouses, this will have significant financial implications for Mr Villiers. It also means that maintenance and divorce actions can be dealt with by separate courts where the facts allow.
With those still with an eye to Brexit, it will be clear that whether or not this continues to be the case at the end of December 2020 when the transition period ends will entirely depend on the deal that is reached, and in that matter we will need to just wait and see.
