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CoA to decide whether English court can consider section 27 maintenance application when Scottish court is dealing with the divorce

Case concerns interpretation of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011

The Court of Appeal has granted permission to a husband to appeal in a case raising important issues concerning the allocation of jurisdiction relating to maintenance within the United Kingdom.

The Court will decide whether a spouse or civil partner whose marriage or civil partnership is being dissolved in Scotland can move to England and apply for a maintenance order, which is likely to be higher than that awarded by the Scottish court, pending divorce or dissolution. The case requires interpretation of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011.

The husband, Charles Villiers, is 54, the wife, Emma Villiers, is 58. They married in April 1994 and spent nearly all of their married life in Scotland. They separated in August or September 2012. The wife and the parties' child moved to England, settling in London.

The husband was made bankrupt in November 2013 and discharged from bankruptcy in November 2014.

The wife issued a divorce petition in England in July 2013. The husband 'issued' a divorce writ in Scotland in October 2014. In January 2015 the wife issued an application for periodical payments and a lump sum order under the Matrimonial Causes Act 1973, s 27, on the basis of failure to maintain. She also issued an application for interim periodical payments under s 27(5). 

Mrs Justice Parker, hearing the applications, considered that England and Scotland were to be treated as separate Member States for the purposes of the 2008 European Maintenance Regulation and that the rules applicable between Member States applied between the associated parts of the UK; held that if the wife's maintenance proceedings were first in time and there was jurisdiction on the basis of her habitual residence, the English court had no jurisdiction to grant a stay; and further held that the Scottish court was not seised of maintenance at the date upon which the wife issued her s 27 application and that the English court had priority.

Parker J ordered the husband to pay the wife £2,500 per month general interim maintenance and £3,000 per month by way of a costs allowance. 

Michael Horton and Alex Laing, both of Coram Chambers, acting pro bono on behalf of the husband, argued that even if a strict approach under the 2008 European Maintenance Regulation applies within the UK, the wife's maintenance claims should be stayed or dismissed. They also argued that the 2011 regulations do not exclude the English court's ability to stay maintenance proceedings on conventional common law 'forum non conveniens' grounds, on the basis that Scotland is the more appropriate forum.

Lady Justice Black granted permission for an appeal to the Court of Appeal which will consider:

- Whether the judge was wrong not to have regard to the higher test for an interim order in failure to maintain proceedings in s 27(5);
- Whether the judge was wrong to make the findings she did in respect of trusts of which the husband is a discretionary beneficiary;
- Whether the judge was wrong to make an order for a costs allowance of £3,000 per month in the circumstances of the case.

For coverage of the proceedings in The Telegraph, click here.

7/7/17