Rachael Kelsey

What was it about?

Competing claims in different parts of the UK. Can you have an action in one part of the UK that deals with divorce and all financial claims (apart from maintenance) and another action in another part of the UK that deals with maintenance claims? Yes, say the majority in this five bench decision – a 3/2 split (interestingly with the three judges with a family law history also split).

Why is this important?

Because, as Lord Wilson puts it in his (dissenting) judgment at para 93: “It is common ground, and a subject of current political debate, that financial awards to a spouse following both separation and divorce are more generous in England and Wales than in Scotland.”

The crucial takeaway of the decision can be summed up by Lord Sales’ comments in his (the leading) judgment at para 41 when he says the legal regime “give[s] her [the wife] the right to choose in which jurisdiction, within those listed in article 3 [which included both Scotland and England and Wales], she wishes to bring her maintenance claim. She has an unfettered choice in that regard, and is entitled to choose to bring her claim in an English court on grounds of its convenience for her or because she believes that the law it will apply is more advantageous to her”.

Facts of the case

The couple met and married in England but spent most of their married life in Scotland. They separated in 2012 and Mrs Villiers thereafter moved back to England, where she has continued to live since. The slightly truncated summary is that Mr Villiers had a writ seeking divorce and expenses (only) warranted in Dumbarton Sheriff Court in late 2014. Service was not effected until 2015, by which point Mrs Villiers had raised proceedings in England and Wales for maintenance (in the form of a standalone application under section 27 of the Matrimonial Causes Act which is usually called a ‘failure to maintain’ claim). The English court at first instance made orders in Mrs Villiers’ favour – for monthly payments and payments in respect of a legal fees allowance order. The Court of Appeal rejected Mr Villiers’ appeal and the Supreme Court has now rejected his further appeal. The Scottish proceedings have been sisted (repeatedly) from the outset.

The law

The rules that allocate jurisdiction intra-UK for divorce and all ancillary claims (other than maintenance) are those contained within the Domicile and Matrimonial Proceedings Act 1973 (DMPA). The Scottish rules are in Schedule 3 (England and Wales are Schedule 1). Where there are competing divorce proceedings, in most cases the court that will prevail is that in the place where the couple last resided together. Until 2011 these rules also allocated jurisdiction intra-UK for maintenance claims. It was accepted by all parties in this case that, in consequence of the DMPA provisions, the Scottish courts have jurisdiction to deal with the divorce and all ancillary claims (bar maintenance). Indeed, as an early acknowledgement of that, Mrs Villiers abandoned divorce proceedings raised by her in England before she raised her section 27 claim.

In 2011 though, at the same time as the EU Maintenance Regulation (Maintenance Regulation) came into force in the UK (which dealt with inter-state competing proceedings between a UK and EU member state other than Denmark), the UK government changed the rules for the allocation of jurisdiction for maintenance claims intra-UK. This was done in the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (CJJMA). Schedule 6 of the CJJMA providing for the allocation within the UK of jurisdiction relating to maintenance matters.

This case was about the CJJMA – did the regulation implicitly remove a residual power in the courts to sist proceedings on forum non conveniens grounds? Were they ultra vires (having been introduced beyond the Secretary of State’s powers to make subordinate legislation for the purpose of dealing with matters related to the UK’s obligations under the Maintenance Regulation)? And, if not, was Mr Villiers’ divorce action in Scotland sufficiently ‘related’ to Mrs Villiers’ maintenance claim in England that the English court should decline jurisdiction?

In short, yes, the regulations removed any discretionary, forum non conveniens, power in the courts in the UK; no, they were not ultra vires and no, the claims were not ‘related’, such that the court could decline to give Mrs Villiers her choice of forum to litigate her maintenance claims.

As Lord Sales says in para 25, ‘Schedule 6 was intended to introduce for intra-state cases the same clear and certain jurisdictional rules which have been adopted for inter-state cases in the Maintenance Regulation, and it has achieved that result’.

Where do we go from here?

The full implications for those of us who advise in this area will be the subject of another piece in the days to come. They are considerable- it is now unambiguously clear that we can have bi-furcated family proceedings in the UK; the judgment underlines how crucially important it is to get the intra-UK analysis correct at the beginning (especially as Lord Sales does a beautiful job of trying to close down being able to do anything too clever by half) and as the end of the transition period looms. Watch this space…

• Rachel Kelsey is a director at Scottish law firm SKO Family Law Specialists.