Cross-border maintenance claims: a sprint and a marathon

In Journal, May 2016, we considered the case of Re V (European Maintenance Regulation) [2016] EWHC 668 (Fam). At the heart of the case is a simple question – Does Scotland or England & Wales have jurisdiction for maintenance? Despite the simplicity of that question, and the fact that the first instance decision was issued in July 2016 (with the case first raised in 2015), it has taken until May this year for the Court of Appeal to issue its decision: [2018] EWCA Civ 1120. As with the judge at first instance (Parker J), the Court of Appeal answered unequivocally that England & Wales has jurisdiction. This article will consider that decision and the implications for Scottish lawyers.

The issues

The parties resided for most of their married life in Scotland. On separation the wife moved to England in 2012, and in 2013 raised divorce proceedings there. The husband raised proceedings himself in 2014 at Dumbarton Sheriff Court, importantly, seeking divorce but no financial orders whatsoever. The wife’s English divorce proceedings were stayed in 2014 and ultimately dismissed, of consent, in January 2015. Of note, as the parties last lived together as husband and wife in Scotland and the husband remained there, the Scottish divorce proceedings would always have taken precedence over the English divorce proceedings (Domicile and Matrimonial Proceedings Act 1973, sched 3). Where the case becomes interesting is that the wife also then raised separate proceedings for maintenance under s 27 of the Matrimonial Causes Act 1973 in England.

For the husband it was argued that the English court had no jurisdiction to entertain the wife’s claim for maintenance, on the basis of his Scottish divorce proceedings. Parker J rejected that argument at first instance, refused to grant his application to stay the proceedings, and awarded the wife £2,500 per month by way of interim periodical payments, ordering the husband to pay, directly to the wife’s solicitor, £3,000 per month by way of a legal fees allowance order. The husband appealed to the Court of Appeal.

The husband sought permission to overturn Parker J’s judgment that an initial writ seeking divorce alone does not constitute an application for maintenance (in terms of article 12 of the Maintenance Regulation – Maintenance Regulation (EC) No 4/2009), but leave to appeal on this basis was refused. Even though the issue was not argued at first instance, the husband was however given leave to appeal on the question of whether, in terms of article 13 of the Regulation, the court should have nonetheless stayed the wife’s proceedings.

Whilst the husband ultimately tabled four grounds of appeal, for present purposes, it is grounds 1(2) and 2 which are of most relevance. The issues arising are as follows:

• (a) Is the application made by the wife under s 27 of the 1973 Act a “related action” under article 13 of the Maintenance Regulation and, if so, should the English proceedings have been stayed in favour of the Scottish proceedings (which were first seised)?
• (b) If not, did the English court have a residual discretionary power to stay the proceedings on the principle of forum non conveniens?

Article 13 and “related actions”

Article 13 of the Maintenance Regulation is as follows:

"1. Where related actions are pending in the courts of different Member States or different parts of the United Kingdom, any court other than the court first seised may stay its proceedings.

"2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

"3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."

The Court of Appeal held that the Scottish divorce proceedings (absent any claims for financial provision) and the English maintenance proceedings were not related actions for the purposes of article 13. A detailed discussion of this issue to be found at paras 64-94 of the decision of the court.

In deciding that the two actions were not related, the following emerged from the decision of the court:

• (a) That whilst forum shopping is generally regarded as being unattractive in family proceedings, ultimately, if within the terms of the Maintenance Regulation a party has a choice between two jurisdictions, then he or she is perfectly entitled to choose that which is more beneficial to him or her. That a party has conducted a case so as to take it outside the application of articles 12 and 13 does not allow the court to essentially undo that choice.
• (b) That in deciding the issue of whether the actions are related the answer is to be found in the earlier case of Moore v Moore [2007] 2 FLR 339; [2007] EWCA Civ 361. In that case, even where there was a live application for financial relief in Spain, it was nonetheless held that the action was not a related action. In coming to its view in the present case, the Court of Appeal held that the subsequent case of N v N [2012] EWHC 4282 (Fam); [2014] 1 FLR 1399 had been wrongly decided.
• (c) The Scottish divorce proceedings related only to status, with no application by either party for financial orders. The fact that there could be such applications does not lead to actions that are otherwise unrelated becoming related for the purposes of the Maintenance Regulation.
• (d) The potential for the wife to make an application for maintenance in the Scottish proceedings at some time in the future, albeit prior to the divorce being granted, cannot be sufficient to seise the Scottish court of the question of maintenance.

In coming to this view the Court of Appeal essentially recognised that even if the result of their decision was to encourage forum shopping on an intra-UK basis on the question of maintenance, where that is permissible in terms of the Maintenance Regulation a party is perfectly entitled to do just that.

Forum non conveniens

As a fallback, the husband argued that the court retained a discretionary power to stay the proceedings on the basis of forum non conveniens, notwithstanding the intra-UK applicability of the Maintenance Regulation by virtue of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484). The husband’s argument, in support of a continuing residual power, was based on an approach to the Civil Jurisdiction and Judgments Act 1982 which was rejected by the Court of Appeal.

The court held that the clear intention of the 2011 Regulations had been to move to a position whereby disputes in relation to maintenance were subject to their own discrete regulation, uniform in its application to both intra-UK and extra-UK disputes. The 2011 Regulations were domestic law which had chosen to import the Maintenance Regulation. That being so, the wife’s English maintenance case was governed exclusively by the 2011 Regulations and the court retained no residual discretion to stay on the basis of forum non conveniens in terms of the 1982 Act or otherwise.

Effect of the decision

This is an important decision both north and south of the border. But why? It is authority for the proposition that so long as a spouse can secure jurisdiction to make a maintenance claim in England, they can do so even if (a) Scotland will take precedence in terms of any action of divorce as between Scotland and England; and (b) divorce proceedings in Scotland are raised first. The only qualification is that the Scottish divorce proceedings cannot include any applications for maintenance, thereby seising Scotland on the question of maintenance.

Given the very different maintenance regimes north and south of the border, and the fact that maintenance jurisdiction can be secured, per article 3 of the Maintenance Regulation, relatively easily based on inter alia the habitual residence of either party, this case means that when faced with a client with a potential maintenance claim and an English connection, before raising in Scotland consideration, and potentially advice from an English practitioner, will be necessary as to the client’s options in England first.

It does appear unfortunate that the jurisdictional rules for divorce and maintenance as applied intra-UK do not sit neatly together. Having a multiplicity of litigation north and south of the border cannot, one would assume, have been the intention of the 2011 Regulations. But for present purposes that is the effect of them when read in conjunction with the Court of Appeal’s decision.

What next?

It remains to be seen whether the Court of Appeal’s judgment will be the end of these proceedings or whether an appeal to the Supreme Court will be made.

At present, the only orders of substance that have been made are an interim order for periodical payments and payment of legal expenses. This case, once back before the first instance judge, will next have to address the extent of orders that can be made in terms of a s 27 application, and in particular, whether such orders persist following the granting of decree of divorce. On the present trajectory – where proceedings were first raised in 2013 – that could take some time.

So whilst the outcome of the Court of Appeal’s decision is perhaps to encourage parties to race to court with their maintenance applications, they need to be clear that they are in fact entering a marathon and not a sprint.