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Villiers v Villiers: An Update

Michal Horton and Alex Laing, both of Coram Chambers, report on the latest developments in a case that has attracted widespread attention in the press.

Michael Horton, barrister, Coram ChambersAlex Laing, barrister, Coram Chambers

Michael Horton and Alex Laing, barristers, Coram Chambers

Following the granting of permission to appeal in June 2017, on 13 – 14 March 2018 the Court of Appeal heard oral argument in the case of Villiers v Villiers. The case focuses on 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 hearing has been widely reported in the national press: for example,  The Times and the Daily Mail.

The husband, Charles Villiers, is 54, the wife, Emma Villiers, is 59. 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 section 27, Matrimonial Causes Act 1973, on the basis of failure to maintain. She also issued an application for interim periodical payments under section 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 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 appeal
Central to the appeal is the operation of an obscure statutory instrument – the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 – which, pursuant to section 2 (2), European Communities Act 1972, introduce a modified form of the EU Maintenance Regulation into intra-UK / national law. Notably, the CJJ(M)R 2011 purports to follow its predecessors which introduced the 1968 Brussels Convention, Brussels I (and, subsequently, the recast Brussels Regulation) yet, unlike with those governing instruments, does not formally amend the schedules to the Civil Jurisdiction and Judgments Act 1982 and incorporates lis alibi pendens and related actions into national law.

It is that statutory instrument and the interpretation of it that governs that the central question: can a spouse who is divorcing in Scotland head south and apply in England for a (significantly more favourable) maintenance order?

The Court of Appeal has been asked, in particular, to rule on two vexed legal issues:

The outcome of this appeal will have a significant impact on intra-UK divorce and finance issues moving forward. In Anglo-Scottish cases, this takes on particular significance given the marked differences between the respective law on financial provision on divorce.

Judgments have been reserved.

Michal Horton and Alex Laing, both of Coram Chambers, acted on behalf of the appellant husband, Mr Villiers.