Claims from over the border: the Villiers legacy

On the day when Boris Johnson averred that there was “no border” between Scotland and England, the Supreme Court issued its judgment in Villiers v Villiers [2020] UKSC 30 (1 July 2020). Border or no, Villiers illustrates how different family law is in Scotland and England & Wales, and the importance of understanding the different jurisdictional rules for divorce and maintenance claims. Villiers settles that there can be contemporaneous proceedings in more than one of the constituent parts of the UK.

There is a long and rather tortuous history to the case, but the headlines are:

• Mr and Mrs Villiers lived for most of their marriage in Scotland and were living in Scotland when they separated.
• A free-standing maintenance claim was made by Mrs Villiers in E&W (and the case was an appeal against orders made in her favour by the English courts).
• A divorce application, making no financial claim, was made by Mr Villiers in Scotland (which remains sisted).
• The Supreme Court decided that the English courts had exclusive competency to deal with all maintenance claims arising from the marriage and separation, given that the English court was first seised of the issue of maintenance, and that the maintenance claim itself was not a “related action” to the divorce application for the purposes of article 13 of the Maintenance Regulation (Council Regulation (EC) No 4/2009 on jurisdiction on applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations).
• The Scottish courts retain exclusive competency to deal with the merits of the divorce and all other financial claims.

Why is this the outcome and what are the implications?

Divorce v maintenance

The first thing to be aware of is that there are different jurisdictional rules for divorce and maintenance claims.

The jurisdictional rules for divorce derive from Brussels IIa (Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility). Those rules have direct effect and are referred to in the Domicile and Matrimonial Proceedings Act 1973. That Act also provides the rules for allocation of jurisdiction where there are competing proceedings in “related” (UK) jurisdictions. If there are proceedings in more than one part of the UK, those that will prevail are those in the place where the couple last resided together.

The jurisdictional rules for free-standing maintenance claims derive from the Maintenance Regulation cited above. These obviously have direct effect, and appropriate changes were made to the Civil Jurisdiction and Judgments Act 1982 after the Maintenance Regulation was brought into force. The UK went further than just incorporating the Maintenance Regulation as between itself and EU member states, though, incorporating the same rules intra-UK (in the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011). The jurisdictional grounds for the person seeking maintenance include being able to sue (a) in the place where the defendant is habitually resident; or (b) where they – the maintenance creditor – are habitually resident.

It is important to note that there are no time requirements for being “habitually resident”. The necessary habitual residence can be acquired swiftly.

Given these differences, it is important to have an understanding of the differences north and south of the border.

The English perspective

Financial claims on divorce in E&W

If the parties had last resided together in E&W, and the English courts had been dealing with the divorce, the financial outcome would be very different. The court in E&W has wide discretionary powers on divorce to make such orders for capital provision, including pension sharing, and for maintenance as it thinks are “reasonable in all of the circumstances of the case”. The court’s focus is on meeting the “reasonable” needs – housing and income – of the parties, not dividing the value of property built up during marriage. The courts in E&W will amalgamate any pre-marriage period of cohabitation with the time that the parties have been married (up until divorce, so there is no “relevant date”, either). There is no automatic exclusion of pre-marital, inherited or gifted wealth.

In appropriate cases, the powers can include making a spousal maintenance order for “joint lives”, that is until one of the parties dies, the recipient remarries or the court orders otherwise.

Claims not related to divorce

In Villiers, Mrs Villiers was not able to avail herself of English law for her divorce and ancillary financial provision, though, and it was necessary to turn to another, standalone, maintenance remedy – what is often called a “failure to maintain” application, under s 27 of the Matrimonial Causes Act 1973. This is not a direct comparator to a standalone aliment claim, and like the remedies available on divorce, it is likely to give more generous provision to the dependent party than they would get in Scotland.

An application under s 27 is a claim made by one spouse against the other on the basis that he/she has failed reasonably to maintain the applicant. There need not be any divorce, nullity or judicial separation proceedings in existence: this is a self-standing application.

What is required at a practical level?
The application requires a statement justifying the financial provision sought. A court fee of £255 is payable. Financial disclosure needs to be given by both parties. The court can make orders for the maintenance needs of the applicant or for the benefit of a child of the family (subject to the jurisdiction of the CMS in the case of a child). Orders can be made for:

• maintenance, and/or
• lump sum provision, and/or
• legal costs on an ongoing basis.

The court can make an order for interim maintenance. The application may be made at any time, provided the parties are still married. The court can make an order for maintenance for such term as it thinks fit, and this can endure beyond the marriage itself.

The other type of maintenance claim that can be made on a free-standing basis is an application for capital and/or maintenance for the benefit of a child, under sched 1 to the Children Act 1989.

A sched 1 order can provide:

• money to be settled on trust to provide or contribute towards the costs of housing a child;
• any number of lump sums designed to meet the capital needs of a child (such as for a car or furniture);
• educational expenses for a child;
• expenses connected with the disability of a child;
• maintenance orders for a child (subject to the jurisdiction of the CMS);
• a carer’s allowance for the person who looks after the child.

An application can be made by the parent of a child; a step-parent where the child has been treated as a child of the family; a guardian or special guardian of the child; or any person who is named in a child arrangements order as someone with whom the child lives.

The child, if aged over 18, can make an application themselves in certain circumstances.

An application can be made against a parent or parents, or a current or former step-parent where the child has been treated as a child of the family. It is made on a standard form and a court fee of £215 is payable. The court directs financial disclosure by both parties and has a wide discretion in assessing the appropriate orders to make. It can again make an interim maintenance order, and it can order one party to meet the other party’s costs of the litigation on an ongoing basis.

The Scottish perspective

The regime for financial provision on divorce/dissolution in Scotland is well known, and the extent to which there is maintenance beyond divorce (i.e. a periodical allowance) is limited, with the Scottish courts being obliged to prefer a clean break on divorce. As a result there are some key points to consider when advising clients with the potential for cross-border actions:

Acting for the financially independent party

When acting for the would-be payer you will want to ensure that the scope and incentive for the creditor to pursue a claim in E&W is minimised, by (1) continuing to aliment the other party; (2) being careful about what steps you take, and are seen to take, in relation to habitual residence (for example, if the financially weaker party is in Scotland, think long and hard before moving to E&W and giving them jurisdiction to raise in E&W); and (3) trying to ensure swift progress of the Scottish divorce action (given that the s 27 application must be made before the divorce).

Acting for the financially dependent party

Get the client to take advice in E&W. Always. Even if you know that it will be a Scottish divorce. Can your client move if they would be better off in E&W?

Both Lord Sales and Lady Black underline that it is for the maintenance creditor to choose where to litigate (assuming they can satisfy the jurisdiction hurdles), and Villiers does make it harder for a payer to try to seise jurisdiction tactically.

As important as the Supreme Court judgment is, the next stages in the High Court in E&W and Dumbarton Sheriff Court are what matter to the Villiers – will the Scottish courts allow the sist to be continued pending the outcome of the English proceedings, or will it be a race to divorce/final orders in E&W? If she is not divorced before the English application is heard, will the court make an order in Mrs Villiers’ favour that outlasts her divorce?