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Villiers - a cross border conundrum

Lucia Clark, Partner (dual-qualified in English and Scottish family law) and Alex Critchley, Solicitor, both of Morton Fraser LLP consider the implications of the recent Court of Appeal judgment in Villiers v Villiers

Lucia Clark and Alex Critchley, Solicitor, both of Morton Fraser LLP

The Court of Appeal has recently issued its decision in Villiers v Villiers [2018] EWCA Civ 1120.  This case is essential reading for any practitioner dealing with English financial and maintenance cases where there is a link to Scotland in particular, or other EU Member States in general.

History of the case

Following their marriage in 1994, the parties lived together in Scotland until August 2012.  On separation, the wife left the former matrimonial home and moved to England. In July 2013, the wife issued a divorce petition in England based on her acquired habitual residence there for 12 months. In October 2014, the husband filed an acknowledgement of service in response to the English divorce proceedings, but also lodged an "Initial Writ" at Dumbarton Sheriff Court seeking decree of divorce based on two years' separation.

In terms of Scottish procedure, there is no separate divorce petition and Form A; instead, the request for divorce and finances is dealt with in one document, being the Initial Writ.  There is no general "tick box" for the court to deal with property transfers, or lump sum, or maintenance - instead, each party must set out set out in a series of requests to the court at the start of the Initial Writ, called the "craves".  what orders they wish the court is to make, in favour of themselves, As Mr Villiers was not seeking any financial orders in favour of himself, he asked the court just to grant decree of divorce, and for his expenses (as would be usual under Scottish procedure). 

The wife's English divorce petition was stayed in November 2014 and subsequently dismissed by consent in January 2015.  However, that same month, the wife issued an application in England for maintenance and a costs allowance for her legal fees under section 27 of the Matrimonial Causes Act 1973.

In July 2016, after a lengthy contested hearing, Parker J found that the English court did have jurisdiction for maintenance purposes, notwithstanding the ongoing Scottish divorce proceedings in Dumbarton, and ordered that the husband pay the wife £2,500 per month by way of interim periodical payments and £3,000 per month by way of a legal fees allowance order. The husband appealed.

The jurisdictional rules - a tangled mess?

Those dealing with English/Scottish divorce cases will be aware that the clear consensus is that the Brussels II bis rules, with lis alibi pendens (or "first past the post") do not apply in intra-UK divorce cases.  Instead, the rules remain per the Domicile and Matrimonial Proceedings Act 1973, which sets out a regime of obligatory and discretionary stays.  In summary, the "tie-breaker" between Scotland and England in competing divorce actions is the last place that the couple lived together.  That is what happened in this case - Scotland had priority to deal with divorce the parties had last resided together in Scotland and the husband remained resident there.

In contrast, the jurisdictional rules for maintenance in intra-border UK cases are based almost entirely on the EU Maintenance Regulation.  This is applied for intra-UK cases by virtue of Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, which states that references to EU Member States in relation to lis pendens (at Article 12) should be read as references to "different parts of the United Kingdom".  First past the post is therefore alive and well when it comes to conflicts of jurisdiction between the English and Scottish court in relation to maintenance. 

The main ground of jurisdiction under Article 3 of the Maintenance Regulation is the habitual residence of either the maintenance creditor or debtor, with no minimum period of residence required.

Where there are related actions, Article 13 provides that where related actions are pending in the courts of different Member States (or, in this case, different part of the United Kingdom), any court other than the court first seised may stay its proceedings.  The remainder of Article 13 states:

"2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."

The appeal

The issues for the Court of Appeal relating to jurisdiction were:

1) Is the application made by the wife in England for maintenance under s27 MCA 1973 a "related action" under Article 13, and if so, should the English proceedings have been stayed in favour of the "first seised" Scottish proceedings?

2) If not, has the English court a residual power to stay the proceedings on the principles of forum conveniens?

In terms of the first point, Lady Justice King considered that the Scottish divorce proceedings related only to the status of the parties.  "There is no application for aliment/maintenance or any other form of financial relief made by either party.  The fact that there could be does not lead to actions which are otherwise unrelated becoming related."  (para 90).  The court viewed that the potential for the wife to make a claim for maintenance at some point in the future cannot be sufficient to seise the Scottish court for jurisdiction for maintenance purposes. 

In reaching this conclusion, the Court of Appeal held that the earlier case of N v N [2012] EWHC 4282 (Fam); [2014] 1 FLR 1399, a decision of Mr Justice Moor, was wrongly decided.  In N v N, the facts were remarkably similar - the husband had issued divorce proceedings in Sweden, made no financial claims, and the wife had responded with a s27 MCA 1973 application in England.  Moor J found that these were "related proceedings" and dismissed the wife's application.  In dealing with this, Lady Justice King comments:

"Moor J is a specialist judge with considerable expertise and experience and one can feel sympathy for him (and the husband) when faced with what appears to be a device designed to frustrate the policy and approach of the first seised court, in that case Sweden. Had Moore been put before him it seems likely that Moor J would have concluded that, unpalatable though he may have found the outcome, the wife's application was in fact a proper application unaffected by the provisions of Article 12 or Article 13 of the EU Regulation." (para 86)

Perhaps with some further sympathy for Mr Villiers, she goes on to note:

"'Forum shopping' is often regarded as being unattractive in family proceedings. Thorpe LJ deprecated such jurisdictional manoeuvres in the bluntest of terms in Wermuth [32]. Mr Scott, however, rightly reminds the court that if, within the terms of the Regulation, a party is able to choose between two jurisdictions, then he or she is perfectly entitled to choose that which is more beneficial to him or her. Mr Scott is, of course, correct." (para 87)

In relation to the second point of appeal, the Court found that "the wife's application under s27 MCA 1973 is therefore governed exclusively by the 2011 Maintenance Regulations and the court retains no residual discretion of the type historically found in s16 and s49 of the 1982 Act." Accordingly, there is no possible application of forum non conveniens.

Counsels' respective submissions involved a wide ranging discussion of the legislative background. The court commented that "each of the parties have delved into the European jurisdictional history with considerable erudition and at some length."

An unanswered question from the appeal is whether the order in terms of s27 MCA will fall away upon the Scottish decree of divorce being granted, or whether it would be possible, or appropriate, for the English court to make an order for maintenance which could be extended after decree of divorce (possibly, for life).  The husband's Counsel did not pursue this ground of appeal, accepting that the time to do so was at the substantive hearing of the wife's s27 application (and so, watch this space). 

Where do we go from here?

Despite the Court of Appeal's comments on the "unattractive" nature of forum shopping, that is now a greater possibility in spousal maintenance cases after this decision. 

If a potential maintenance claimant approaches you, an English solicitor, after divorce proceedings have been issued in Scotland or elsewhere, Villiers gives more scope to consider whether there nevertheless remains the possibility of issuing maintenance proceedings in England.  Is what has been done in the divorce jurisdiction enough to seise maintenance jurisdiction?  The actions of Mr Villiers in Scotland (a Scottish initial writ seeking divorce, without any application for financial provision) is not "enough".  The actions of the husband in Sweden in N v N would now fall within the same category.

This seems harsh and unfair for jurisdictions whose financial claims operate differently from the English system.  In particular, it leaves Scottish family law practitioners with a dilemma.  It is simply not possible for a maintenance payer to crave a payment of aliment or periodical allowance (Scottish terms for maintenance pre- and post-divorce) against him or herself.  There is a possible work-around, by way of claiming this as an incidental order, or (perhaps) seeking to dismiss the other's party's potential maintenance claim, but neither is "usual" in Scottish divorce procedure.  There may well be other jurisdictions which have the same difficulties.   The problem of applying uniform rules of jurisdiction is that they quickly become non-uniform when the workings of the individual legal systems remain so different. 

In this kind of situation, questions for the English family lawyer to consider might be as follows:

• Has anything been done regarding a maintenance claim in the foreign jurisdiction seised with the divorce?  If so, is it sufficient to seise jurisdiction for maintenance?  Will it count as an Article 13 "related action"? 

• If a maintenance claim has been made in the divorce jurisdiction, can it be challenged as being not competent?  An expert opinion from a foreign lawyer may be useful. 

• Is there any advantage to the maintenance claimant issuing a s27 application in England, taking into account the likely outcome for maintenance in both jurisdictions?  This assessment may in large part depend upon whether s27 is ultimately determined to apply only to interim maintenance before decree of divorce, or whether it extends to post-divorce maintenance. 

• Is there any risk for the maintenance claimant in issuing a s27 application?  For example, what are the consequences of this on the rest of the matters raised by the divorce? It is suggested that this application will prevent the court dealing with the divorce from dealing not only with "spousal maintenance" but also "maintenance" in its autonomous EU definition, per Van den Boogaard v Laumen.  Could restricting the divorce court in this way backfire against the maintenance claimant?  There is also, of course, the potential cost of the jurisdiction battle.

• If the advantage is thought worthwhile, is it worth the maintenance claimant actually moving to England post-separation in order to acquire habitual residence and issue the application?  

Those undergoing divorce are unlikely to welcome the cost and confusion which this type of investigation will bring, with the potential for split proceedings in more than one court.  We may well be stuck with this for EU cases (although perhaps Brexit may allow the opportunity to change that).  But we don't need to be stuck with it for intra-UK cases.  There was no requirement for the UK Government to copy the Maintenance Regulation for UK cases.  The previous position - that the place the couple last lived together had precedence - worked well, being clear, fairly unambiguous, and not costly to implement, with an understandable link between the place of the marriage and the place dealing with divorce and finances.  This rule is considerably more arbitrary, may well lead to costly litigation, and allows for more forum shopping.  Along with much of the jurisdictional provisions for intra-UK family law, it sorely needs a legislative fix.  Unfortunately, that seems unlikely to happen any time soon.