On 17 May 2018 the Court of Appeal handed down judgment in Villiers  EWCA Civ 1120. This was an appeal from an Order of Parker J dated 8 July 2016 which ostensibly dealt with the inter-relationship between divorce proceedings in Scotland and financial proceedings in England.
At the crux of the dispute is the fact that it is commonly accepted that the English Courts are generally more generous in providing maintenance than the Scottish Courts. It was in this context that following their separation in 2012 Mrs Villiers sought to pursue divorce and financial proceedings in England.
The parties married in 1994 and moved to Scotland the following year where they lived until their separation. Upon separation Mrs Villiers moved to England and one year later issued divorce proceedings in England (based on 12 months habitual residence).
Mr Villiers disputed the English divorce proceedings and issued divorce proceedings in Scotland. Pursuant to Schedule 1 paragraph 8(1)(c) of the Domestic and Matrimonial Proceedings Act 1973, where there are competing divorce proceedings in England and Scotland, the jurisdiction in which the parties last lived together is the proper jurisdiction. There is no first to issue rule. Therefore in this instance, Scotland trumped England for divorce jurisdiction.
The English divorce proceedings reached their conclusion in January 2015. At this time Mrs Villiers issued proceedings in England under section 27 Matrimonial Causes Act 1973 (the so-called “failure to maintain” provision). She requested that the English court made financial orders including for maintenance. Section 27 applications are not contingent on ongoing English divorce proceedings.
When Mr Villiers’ issued his writ of divorce in Scotland he did not include a prayer or “crave” for financial orders. He also did not issue the equivalent of a Form A for financial orders in Scotland. Either form or application is required in Scotland so as to engage the Scottish Courts in relation to financial matters.
It was in this context that Mrs Villiers pursued her financial claims in England. Whilst accepting that the Scottish Courts had jurisdiction for divorce she said that the English Court could make maintenance Orders. Mr Villiers disputed the jurisdiction of the English Court.
As between England and Scotland jurisdiction in relation to maintenance is governed by the EU Maintenance Regulation and Schedule 6 of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011. In essence the first to issue rule applies as between England and Scotland (Article 12 of the Maintenance Regulation).
At first instance Mr Villiers maintained that the Scottish court was the Court was first in time (and therefore should have priority under article 12 MR) in light of his Scottish writ of divorce which was issued prior to Mrs. Villiers’ section 27 application. Parker J rejected Mr. Villiers’ arguments on the basis that she was “satisfied that the issue of the writ in Scotland [did] not constitute an application or include an application for aliment (maintenance).”
Mrs. Villiers’ section 27 application was allowed to proceed.
Mr. Villiers’ appealed. At permission stage Black LJ rejected the Mr Villiers’ argument under Article 12 MR.
However, on appeal Mr Villiers also argued that the Scottish divorce proceedings should be considered “related actions” to the financial/maintenance proceedings and that the fact that the Scottish writ was issued prior to Mrs. Villiers’ section 27 application meant that the English proceedings should be stayed (applying Article 13 of the Maintenance Regulation).
Mr. Villiers also sought to argue that the English court has a residual discretionary power to stay section 27 proceedings on forum non conveniens grounds. He also raised issues in relation to the section 27 award itself which are not pertinent to this summary.
The appeal was dismissed.
The Court of Appeal rightly found that the Scottish divorce proceedings related only to the status of the parties, married or not married. There was no financial application within those proceedings. The section 27 application in England dealt only with financial and maintenance matters. The fact that the Scottish divorce proceedings could give rise to financial applications was not of itself sufficient to establish that the Scottish divorce and the English maintenance proceedings are “related” for the purposes of Article 13 of the Maintenance Regulation.
The Court of Appeal took a trawl through the history of the EU Regulations in the field of family law together with the Civil Jurisdiction and Judgments Act 1982 and did not accede to Mr. Villiers’ argument that the English Court has a discretionary power regarding these dispute on forum non conveniens. Had the Court acceded this would have driven at the heart of the first to issue principle.
And so Mrs. Villiers’ section 27 application was allowed proceed in England notwithstanding the pre-existence of Scottish divorce proceedings.
This raises an important point of practice for English and Scottish lawyers. Whilst it is assumed that financial proceedings will follow the location of the divorce proceedings as between England and Scotland, this is not always going to be the case. A free-standing application under section 27 will be allowed to proceed even if there are pre-existing and legitimate divorce proceedings in the Scottish Courts, so long as the English application is commenced before any financial application in Scotland.
As a rule, if you are looking to seise the jurisdiction of the Scottish Courts for the wealthier spouse for tactical reasons, ensure you issue a financial application at the same time as the divorce writ so as to seise maintenance jurisdiction in Scotland. Conversely, if faced with a Scottish writ and if your client wants to seek maintenance, consider issuing a section 27 application in England before the Scottish Petitioner issues financial proceedings.
Each situation is different and often what is needed is a practical and fair solution for both people. I am involved in a number of international cases and cases involving Scotland and England where people need to navigate through the complexities of divorce law toward a resolution. If you have any queries regarding this guidance please do not hesitate to contact me on email@example.com / +44 (0)203 178 5668.
Stuart Clark is an Associate at iFLG, and has a wide breath of experience in all issues arising from the breakdown of a relationship but particularly specialises in financial and forum matters. His work involves complicated trust and partnership issues when often quick advice needs to be obtained from a specialist lawyer in another jurisdiction to run concurrently to his cases in hand.
The International Family Law Group LLP
© 17 May 2018