August 2020 – Divorce – And what a Difference an “and” Makes

Author: Mitchells Roberton
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Put broadly, in Scotland, the general aim in relation to financial provision on divorce is that there should be a “clean break” so far as possible. Things are different in England where there is scope for long-term generous maintenance payments being made.

Last month the Supreme Court issued its ruling in a high profile case concerning financial provision on divorce. The case addressed the situation where divorce proceedings were started in one jurisdiction (in this case Scotland) by one party (in this case, the husband, Mr Villiers) but where the other party, (i.e. Mrs Villiers) made a claim for a financial maintenance order in another jurisdiction (in this case England).

The background to the case

After marriage in England in 1994, the Villiers lived together in Scotland between 1995 and 2012, when they separated. Mrs Villiers (“the Wife”) returned to England in 2012 and has lived in England since then.

In 2014, Mr Villiers (“the Husband”) sued for divorce in Scotland. His divorce application proceeded here since the parties had last lived together here and so Scotland was the required jurisdiction. Mrs Villiers accordingly consented to an order dismissing her own divorce action in England. But, on the same day, she made a separate application in England (under section 27 of the Matrimonial Causes Act 1973 (“the Relevant Section”)) seeking financial maintenance from Mr Villiers.

Relief in the form of an order for maintenance under the Relevant Section is not tied to the grant of a decree of divorce and such an order can be sought in separate proceedings. Therefore – subject to questions of jurisdiction – the Wife was free to issue her application for maintenance in England.

The Husband vigorously resisted her application in the knowledge that if it was to be allowed to be heard in England the potential financial implications for him were significant. But, in the end he lost.

The nub of this aspect of the Husband’s case

As mentioned the Wife sought financial maintenance under the Relevant Section which provides

“(1)  Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage …

(a)  has failed to provide reasonable maintenance for the applicant…

(2)  The court may not entertain an application under this section unless it has jurisdiction to do so by virtue of the Maintenance Regulation [i.e. a European Council Regulation concerning inter-State jurisdiction] and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 [headed ‘Allocation Within the United Kingdom of Jurisdiction Relating to Maintenance Matters’].”

So, in order for the court to hear the Wife’s case it needed to have jurisdiction to do so by virtue of the European Maintenance Regulation and the analogous UK Regulations dealing with jurisdiction among Scotland, England & Wales and Northern Ireland.

The Husband’s argument

It is remarkable how a little word like “and” (which, as shown above, appears in the Relevant Section) can fuel much debate!

The Husband argued that the English court only had jurisdiction to hear the Wife’s application for financial maintenance if her case fell to be governed both by the European Maintenance Regulation  and the analogous UK Regulations and so it only applied in inter-State cases. The Villiers’ case was not an inter-State case but only  an “intra-UK” case: it was not both. So the Husband argued the Relevant Section did not apply and the Wife’s application could not be heard by the English court.

The eventual outcome on that point

In this case there was no European or inter-State dimension. There was simply an “intra-UK” dimension in that the divorce proceedings had been started in Scotland by the Husband but the Wife had made an application under the Relevant Section for financial maintenance in England where she was now living.

It was held by the Supreme Court (after much deliberation on the point) that the Husband’s argument had to be rejected. In particular, the opinion of the Court (para. 26) said:

“[The Relevant Section]   is intended to cover two classes of case: (i) inter-state proceedings, in relation to which jurisdiction is governed by the [EU] Maintenance Regulation, and (ii) intra-state proceedings, in relation to which jurisdiction is governed by [the UK] Schedule 6. In this context, it might perhaps be said that the use of the word “and” [in the Relevant Section] is infelicitous; but the meaning is abundantly clear. There is no scope for the Maintenance Regulation and Schedule 6 both to apply, because they deal with different types of case.”

In short, it follows that it is possible for financial claims for maintenance under the Relevant Section to be brought in England even though the divorce (and other financial issues) are being addressed in another jurisdiction.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Fiona Wayman: email Fiona@mitchells-roberton.co.uk

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