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Supreme Court grants permission to appeal in Villiers v Villiers

Case concerns jurisdiction between England and Wales, and Scotland in maintenance proceedings

The Supreme Court has granted permission to Charles Villiers to appeal against the decision of the Court of Appeal in Villiers v Villiers [2018] EWCA Civ 1120.

The case concerns the ability of the English court to consider applications for maintenance under section 27, MCA 1973 when the Scottish court is seised of the divorce.

The parties married in 1994, moved to live in Scotland thereafter, and separated in 2012. Mrs. Villiers moved to London in 2013 and issued a divorce petition in England. In 2014, Mr. Villiers contested jurisdiction of the English court and issued a writ of divorce in Scotland. The writ contained no prayer for financial remedies. Neither party made an application for financial relief in Scotland (such an application is necessary to engage financial jurisdiction).

On 13 January 2015, the wife made an application under s.27 of the Matrimonial Causes Act ("the MCA 1973"), seeking interim spousal maintenance to include an allowance for legal fees.

On 16 January 2015, the wife's English petition for divorce was dismissed by consent, since the parties had last lived together in Scotland (see paragraph 8(1)(c) of Schedule 1 to the Domestic and Matrimonial Proceedings Act 1973) [9].

The husband applied to stay the MCA 1973 proceedings and challenged the English court's jurisdiction to determine W's application for interim spousal maintenance. The matter was heard by Parker J in July 2015.
The husband's application to stay the wife's claim for interim maintenance rested on the interpretation of Articles 12 (Lis Pendens) and 13 (Related Actions) of the EU Regulation, as applied to intra-UK jurisdiction disputes by the 2011 Maintenance Regulations. Mrs Justice Parker, hearing the applications, considered that England and Scotland were to be treated as separate Member States for the purposes of the EU 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 section 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.
The husband appealed. Amongst other grounds, he claimed that the decision of Parker J was wrong because:

(1)  The husband's prior writ of divorce involved a "related action", allowing a discretionary stay under Article 13(1) or (2); and/or

(2) Parker J had erroneously interpreted the legislation as excluding the court's power to stay the English maintenance proceedings on the grounds of forum non conveniens.

The husband's appeal was dismissed on all grounds and no stay was imposed on the wife's application under the MCA 1973.

The husband sought permission to appeal against the Court of Appeal's decision on five grounds, as follows:

(1)  The Court of Appeal was wrong in law to hold that a court in one part of the United Kingdom has no power to stay proceedings relating to maintenance on the grounds of forum non conveniens where a court in another part of the United Kingdom is the more appropriate forum.

(2)  Further and/or in the alternative, the court was wrong in law to hold that, under the 2011 Maintenance Regulations, an action for divorce in Scotland could not be and was not a related action to an application for maintenance under s 27 of the Matrimonial Causes Act 1973.

(3)  Further and/or in the alternative, the Court of Appeal was wrong in law in its construction of s 27(2), so that the court had no jurisdiction to make any order for maintenance at all.

(4)  Further and/or in the alternative, the Court of Appeal was wrong in law not to require the maintenance order to end on divorce, even though it was an interim order.

(5)  In so far as the 2011 Regulations removed the power to stay maintenance proceedings on the ground of forum non conveniens, the Regulations were ultra vires s 2(2) of the European Communities Act 1972.

Permission has been granted on grounds (1), (2), (3) and (5), but not granted on ground (4). A hearing date has not yet been set.

For the Court of Appeal judgment, and summary, click here.