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UK Supreme Court hears cross-border maintenance case

Monday, 9 December, 2019

This week, the UK Supreme Court is hearing Charles Villiers' appeal against an English court order requiring him to pay his ex-wife GBP5,500 a month in interim maintenance and legal funding, even though their divorce proceedings were launched in Scotland.

Villiers argues that the maintenance order should not have been granted under s.27 of the Matrimonial Causes Act 1973, on the grounds of forum non conveniens. The England and Wales High Court thus did not have jurisdiction to deal with it.

At first instance, at an interim hearing, Parker J considered that the English courts did have jurisdiction, and made an order that he pay Mrs Villiers GBP2,500 a month in interim maintenance, as well as GBP3,000 per month for legal funding. Last year, the England and Wales Court of Appeal (EWCA) upheld this order (Villiers v Villiers, 2018 EWCA Civ 1120).

The fate of Villiers' appeal turns largely on whether divorce proceedings and maintenance proceedings are 'related actions' for the purposes of article 13 of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011.

The other point being argued relates to schedule 6 of the 2011 Regulations, which the EWCA interpreted as treating Scotland and England as two separate states, so that either party could make a maintenance claim in the country of their habitual residence without requiring any minimum stay.

This interpretation encourages so-called ‘forum shopping’ within the UK, as English courts are preferred by the financially weaker party in maintenance cases because they have historically been willing to grant joint lives maintenance orders, unlike Scottish courts. Mrs Villiers alleges that her husband has access to significant assets held in a family trust.

Villiers argues that schedule 6 of the 2011 Regulations is ultra vires section 2(2) of the European Communities Act 1972.

According to the Daily Mail, a legal team acting on behalf of the Ministry of Justice has been granted permission to take part in the case, as it could have ‘”significant and wide ranging” implications on post-Brexit UK divorce laws.’

Sources