Scotland v England: the Supreme Court decides

1st July 2020 Family Law

Today sees the resolution of Villiers v Villiers, a highly unusual but significant family law case about the respective powers of the Scottish and English courts.

The facts

Mr and Mrs Villiers married in 1994. They spent almost the entirety of their married life in Scotland and their adult daughter was born and raised there. When the parties separated in 2012, Mrs Villiers and her daughter moved to England. In 2013, Mrs Villiers started divorce proceedings in England, as she was entitled to do, having been “habitually resident” for the preceding 12 months. 

Mr Villiers – presumably with a keen eye on the more restrictive financial provision available on divorce in Scotland – contested the jurisdiction of the English courts and started divorce proceedings in Scotland 2014. In early 2015, the parties agreed that Mrs Villiers’ English petition should be dismissed on the grounds that Scotland was the proper jurisdiction for the divorce as that was where the parties last lived together. And so it was that the parties stood to be divorced by a Scottish court. Mr Villiers did not include any claim for financial provision in his divorce application (known as a prayer or “crave”), a potentially significant omission.

Around the same time, Mrs Villiers made an application for maintenance in England using section 27 of the Matrimonial Causes Act 1973. With no divorce ongoing in England, it might be thought that a matter such as maintenance – something usually so intimately connected with divorce – could not possibly be dealt with here. However, section 27 is an odd beast.

Section 27

This rather quiet corner of English family law allows someone to make an application for maintenance (which here means periodical payments and/or lump sums) on the grounds that their spouse has “failed to provide reasonable maintenance” for them. An equivalent application can be made by civil partners. 

Maintenance and other financial orders are usually made on the back of divorce proceedings to allow the court to make an order that deals comprehensively with a divorcing couple’s financial affairs. Under section 27, the court can order maintenance payments and/or a lump sum in cases where there are no ongoing divorce proceedings. This could happen:

  • Where a person is not getting the financial support they need from their spouse but does not wish to pursue divorce or even judicial separation proceedings for religious and/or ideological reasons
  • Where the need for maintenance arises when parties separate before the first anniversary of their marriage. Because you cannot start divorce proceedings until after the first year of marriage, it is not possible to apply for what’s known as “maintenance pending suit” (basically maintenance while awaiting divorce) before that point. Section 27 could be a useful stopgap here. This has arisen less often since 1984. Before then, couples had to obtain the court’s permission to divorce before they had been married for three years
  • In the unusual situation where fault-based divorce proceedings have been successfully defended and five years of separation have not elapsed. An application under section 27 would be the only way to secure financial provision, other than CMS child maintenance. This long waiting period will of course become a thing of the past when the Divorce, Dissolution and Separation Act 2020 comes into force next year, bringing with it a new, no-fault regime for divorce

Why Mrs Villiers applied under section 27

In very simple terms, she did it because financial provision on divorce has the potential to be far more generous to the financially weaker spouse in England than in Scotland.

With the English divorce proceedings cancelled before they reached a conclusion, Mrs Villiers could not apply for the usual forms of financial provision on divorce in this jurisdiction. Presumably looking to the relative generosity of the English courts, Mrs Villiers made an application under section 27, including an application for interim maintenance and an allowance towards her legal fees. Mr Villiers applied to stay (stop) the English proceedings.

Obtaining a maintenance order like this in England – even if it did not include the full range of provision available with an English divorce – would make a huge difference to Mrs Villiers. Maintenance in Scotland is normally limited to three years after divorce but there is no such limitation here, albeit that lifetime maintenance is far from the norm. The courts in Scotland also do not take into account interests under a will or potential benefits under a discretionary trust whereas they can in England and Wales. Although Mr Villiers is a relatively recent bankrupt, it is understood that he is a beneficiary of substantial trusts. On the strength of his previous access to funds from the trustees, the court in London made an order that he pay Mrs Villiers monthly maintenance of £2,500, £3,000 towards her legal fees and legal costs of just under £20,000. Mr Villiers’ request for a stay was dismissed at the same hearing.

Mr Villiers appealed this order in the Court of Appeal and lost. He then got permission to take his case to the Supreme Court, which heard the case in December last year. This is when the government (in the form of the Lord Chancellor) became involved.

How a family case turned into a matter of constitutional law

This case is not just about what is right for this particular family. The jurisdictional basis for making the order in Mrs Villiers’ favour raised some big questions about the way in which EU family law has been incorporated into UK domestic law. 

EU law on jurisdiction

For many years, EU law has provided the framework for deciding whether or not the courts in the UK have jurisdiction to deal with a range of family proceedings, including divorce and financial matters. These laws continued after the UK’s technical exit from the EU on 31 January 2020. Whether they will continue into the future will depend on the nature of the future relationship between the UK and the EU, which currently hangs in the balance.

Jurisdictional disputes on matters of maintenance involving Scotland and England are decided according to regulations made in 2011 which are a “domesticated” version of the 2009 EU Maintenance Regulation. It is a strange quirk that the 2011 regulations treat England and Scotland like two separate countries – on account of their separate legal systems – notwithstanding that the UK was a single EU Member State. Mr Villiers argued that the Maintenance Regulation should only have relevance where the jurisdiction debate lies between two different countries, not constituent parts of a single country.

One family, two issues, two legal systems

It may seem intuitively wrong for the intimately connected issues of divorce and maintenance to be litigated within separate legal systems. However, the Court of Appeal did not agree. To apply under section 27, Mrs Villiers simply had to show that she was habitually resident in England and Wales, which she had been for some time, following her move in 2012. The effect of EU Maintenance Regulation and the 2011 UK regulations is that the courts operate a first come first served rule (the lis pendens rule), even if that means two disputes within the same family are dealt with in separate legal systems. Mrs Villiers applied to the English court about finances. Mr Villiers only applied for a divorce in Scotland. The two sets of proceedings can continue to a conclusion: the Scottish case dealing solely with marital status and the English case dealing only with maintenance. The fact that Mrs Villiers could, at some future stage, apply for financial provision in Scotland did not mean that they somehow beat the English court to it.

Before the coming into force of the 2011 regulations, the existing law would have given the court discretion to stay the English proceedings on the grounds that Scotland, seised of the divorce, is a more appropriate forum for deciding financial matters. The Court of Appeal found that this discretionary power no longer existed and the first come first served rule predominates.

Mr Villiers argued in the Supreme Court that in making the 2011 regulations, and taking away the court’s discretion to stay proceedings which would be better decided elsewhere, the government had acted outside its statutory powers (ultra vires). This is big constitutional claim to make and so the UK government became a party to the proceedings. Now that’s something you don’t see every day. 

“Related actions” – should similar disputes be decided in a single case?

Mr Villiers also tried to argue in the Court of Appeal that the Scottish divorce and English financial application were “related actions”. Under the 2011 Regulations, and the 2009 EU Maintenance Regulation, where two closely connected cases are ongoing between the same parties, those which began first should take precedence and the court dealing with the subsequent case can take steps to halt it and allow it to be heard alongside the first. Here, the court found that questions of maintenance and marital status were separate. No matter what the outcomes in the respective legal systems, the decisions covered different ground so there was no risk of irreconcilable judgments. 

The appeal to the Supreme Court

The issues for the court to decide were:

  1. Could the court in England stay an application under section 27 on the grounds that Scotland was the more appropriate forum for the dispute between the parties?
  2. Are the section 27 proceedings and the divorce proceedings “related actions”, allowing for a stay of the English proceedings under the 2011 regulations? 
  3. Was the UK government acting outside of its powers, granted by section 2(2) of the European Communities Act 1972 when it brought in the 2011 regulations? 

By a majority the Supreme Court dismissed the appeal. 

The court concluded that the legislation governing jurisdiction in cross-border cases treats maintenance obligations and questions of marital status, including divorce as separate matters for the purposes of jurisdiction. The court did not have jurisdiction to stay the application under section 27 on the basis of forum non conveniens. The section 27 proceedings and the divorce proceedings were not found to be “related actions” and nor was the UK government found to be acting outside its powers, granted by section 2(2) of the European Communities Act 1972. The wife, as the maintenance creditor was entitled to choose within which jurisdiction to bring her claim. It was said to be the object of the Maintenance Regulation to confer that right on the maintenance creditor and that it defined the set of jurisdictions in which a claim could be brought. 

What does this all mean?

The Supreme Court was asked to decide a fairly obscure point of the law on family finance and consider the way in which UK ministers have given effect to EU law. It may be that if the UK does not reach an agreement with the EU during the current “transition” period, this will all fall away into irrelevance in very short order. Despite the presence of government lawyers, this case isn’t really about the rights and wrongs of Brexit.

However, for Mr and Mrs Villiers, constitutional arguments in the UK’s highest court are secondary, and the outcome will simply make a difference of many thousands of pounds over the course of many years to come. For the rest of us, it throws a spotlight on the centrality of EU law to family law in this country and the huge amount of work that will be required to disentangle it if there is a total break with EU law at the end of the transition period. The case also throws into sharp relief the enormous difference between English and Scottish financial provision on divorce. Couples with connections north and south of the border should consider their position very carefully if they fear separation may be on the cards.

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Katie Lowe is a Partner located in Manchesterin our Family department

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