3rd July, 2020
Villiers v Villiers (2018) EWCA Civ 1120
Mr & Mrs Villier married in 1995, and lived in Scotland together until separation in 2012. Once separated, the wife moved to England, but the husband remained living in Scotland.
In July 2013 the wife issued a divorce petition in England, but in October 2014 the husband lodged a writ for divorce in Scotland.
As the husband and wife had last resided together in Scotland and had been habitually resident there for at least a year, the English Court was obliged to stay the wife’s petition. In January 2015, after the wife’s petition was stayed it was, by consent, dismissed.
On 13 January 2015, the wife issued an application in England under the little used Section 27 of the Matrimonial Causes Act 1973 (“MCA 1973”) for an order requiring the husband to make maintenance payments (periodical payment and a lump sum) on the ground that the husband had failed to provide reasonable maintenance for her. Scotland’s family law jurisdiction is generally antithetical when it comes to issues of spousal maintenance.
The husband contested the wife’s application on two bases:-
1. The wife has not been habitually resident in England on the date of issue of her application. The English court therefore lacked jurisdiction to entertain it.
2. Even if the English court had jurisdiction, it should stay the application in light of the standing writ for divorce in Scotland.
Issues and Decision
Four main issues were identified in the case. Each issue was discussed in detail, and led to the Supreme Court’s decision to dismiss the Husband’s appeal.
1. On the proper interpretation of Section 27(2) MCA 1973 does an English court have jurisdiction to make an order for maintenance in a case with no international dimension at all?
It was held that the English courts do have jurisdiction to make an order for maintenance as section 27(2) MCA 1973 is intended to cover two classes of cases, inter-state proceedings where jurisdiction is governed by the Maintenance Regulations and inter-state proceedings where jurisdiction is governed by Schedule 6.
By stating that Section 27(2) MCA 1973 can only apply if a case is governed by both the Maintenance Regulation and Schedule 6, deprives Section 27(2) MCA 1973 of any practical effect; there is no possibility for the Maintenance Regulations and Schedule 6 to both apply as they deal with two different types of cases.
2. Does the English court have a discretion which has survived the promulgation of Schedule 6, to stay maintenance proceedings before it on the general ground of forum non conveniens?
It was held that the English courts do not have to stay maintenance proceedings on the ground of forum non conveniens as the objective of the Maintenance Regulation is to protect the rights of the claiming spouse. The mandatory rule in Article 3 of the Maintenance Regulations is to offer special protection to the claiming spouse by giving him/her the right to choose the jurisdiction most beneficial to them, out of the options set out in Article 3.
The claiming spouse has the right to choose which court is the most convenient and allows for the most advantageous maintenance provisions for him/her.
3. Was the purported removal by Schedule 6 of general discretion to stay proceedings on the ground of the forum non conveniens ultra vires the Secretary of State’s powers in Section 2(2) of the European Communities Act 1972 (“ECA 1972”)?
It was held that it does not ultra vires the Secretary of State’s powers in Section 2(2) ECA 1972, as the purpose and effect of Schedule 6 is to ensure that there is a clear and certain set of rules which applies to all maintenance claims with a cross-jurisdictional dimension, regardless of whether it is on an inter-state basis or an intra-state basis. It allows everyone to clearly know where they stand and what their rights are.
4. Is the husband’s divorce proceedings in Scotland a ‘related action’ for the purposes of article 13 of the Maintenance Regulation (as applied by Schedule 6) and, pursuant to that provision, should the English court decline jurisdiction in respect of the wife’s claim for a maintenance order under Section 27 MCA 1973?
It was held that the husband’s divorce proceeding in Scotland is not a related action within Article 13 of the Maintenance Regulations. Therefore, the English courts cannot decline jurisdiction for the wife’s maintenance claim under section 27 MCA 1973, as Article 13 has no application.
The subject matter of the two proceedings are not connected in any way; the wife wants maintenance and the husband wants a divorce to end his martial status. It is only the maintenance claim that falls within the Maintenance Regulations.
The outcome of the case causes potential implications; as stated by Lord Wilson one of the major consequences of the decision “will be the untrammelled licence given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of her case”.
Additionally, the decision may encourage other people who are habitually resident in Scotland to seek Court proceedings in England as the maintenance awards will undoubtedly be more generous than that of Scotland, thereby exploiting further the jurisprudential gap between England and Scotland.
The decision has no doubt left it even more important for family solicitors to carefully consider cross-border connections for families living apart and how/where to issue proceedings. With Brexit looming and the spectre of no deal arrangements growing larger by the day, it will be interesting to see the impact of EU wide maintenance regulations disappearing or being substantially modified. The Wife in Villiers relied heavily on the interpretation of the existing framework. In a post Brexit landscape of reliance on forum non conveniens arguments between competing international interests, the Villiers decision may become quickly out of date.
Partner & Head of Family Law
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