Villiers v Villiers – Divorce judgment gives ‘licence to forum shop’
The long-awaited Supreme Court decision was handed down recently. The case addressed the circumstance where divorce proceedings have been commenced within one jurisdiction by one party but the other party has made a claim for maintenance. Otherwise known as ‘Forum Shopping’.
The Husband filed for a divorce in Scotland where he and his wife spent almost all their married life, the petition was issued in October 2014. In January 2015 the wife made an application under section 27 of the Matrimonial Causes Act 1973 seeking maintenance, in England given that she moved back to England upon separation.
England and Scotland have very different approaches to maintenance. England has a notoriously generous maintenance regime where high value, long term maintenance is available, whereas in Scotland maintenance is normally limited to a few years.
The husband argued that the English Court did not have the jurisdiction to deal with the wife’s maintenance application but was unsuccessful in the Supreme Court. The wife relied on the EU Maintenance regulations which are embodied in domestic law. This meant that financial claims limited to maintenance can be brought in England and Wales even though the divorce and other financial issues are being addressed in another jurisdiction. This was because the divorce proceedings issues in Scotland were not seen as a related provision withing the EU Maintenance Regulations.
This not only means that it applies to England, but also to any other country in the EU should there be a cross-boarder dispute. Although, it is unclear how this will look in a post-Brexit era following the 31 December 2020.
Lord Sales, one of the Supreme Court Justices said that spouses seeking maintenance payments should be seen as the more “vulnerable party” and should therefore be allowed to claim in which ever legal jurisdiction was the “most convenient and least expensive for them and allows for the most generous maintenance provision”.
It is likely that this ruling will have far-reaching ramifications for cross-boarder divorce cases involving wealthy couples who had a connection to England. Emma Stamp has said that “this decision has been seen as reinforcing England as the divorce capital of the world, allowing those who want to, to bring financial claims in England. Its likely that this case will allow more parties to exploit the gap between how England and Scotland treat parties upon separation and it is likely that financially weaker parties will continue to bring their claims in the English Courts”.