Is there a loophole in the law to allow divorcing spouses in Scotland to make an application in the English Courts to obtain a more favourable maintenance Order?
In the Case of Villiers –v- Villiers, the parties married in 1994, separating in 2012. Although the parties resided in Scotland for the most part of their marriage, the Wife moved to England with their daughter following their separation. The Wife issued her divorce petition in England in July 2013 and the Husband his divorce writ in Scotland in October 2014. The Court in Scotland took control of the parties divorce and therefore the financial matters ancillary thereto.
The Wife however made an application in the English Courts in January 2015 for periodical payments and a lump sum order under section 27 of the Matrimonial Causes Act, requesting the husband pay her maintenance. The Husband had spoken about his financial difficulties including being made bankrupt in November 2013 which he was discharged from November 2014 and Barclays repossessing the Milton House that they shared in 2015.
The Husband argued that the Court in England did not have jurisdiction to deal with the matter of maintenance as the divorce was being dealt with in Scotland. The Court in England deemed they did have jurisdiction to deal with this matter and ordered the Husband to pay the wife £2500 per month general maintenance and £3000 per month by way of a costs allowance. The Court determined that Scotland were not seised of jurisdiction when the wife made her application and as she is habitually resident in the UK they could deal with the matter.
The Husband was granted permission to appeal in June 2017 and the Court of Appeal heard oral arguments earlier this month from both parties.
The Husband is arguing that the Court in England do not have jurisdiction to deal with the issues of maintenance as his divorce is being dealt with in Scotland and so to should financial matters ancillary thereto. The Husband is asking whether maintenance will continue after divorce if it is upheld and why a spouse should receive a more lucrative lump sum in England over a spouse who made an application in Scotland. The Wife submits that the Husband’s appeal should be dismissed.
Judgment in this matter will be delivered later this year and will have a significant impact on the law moving forward, given the differences between the respective laws in England and Scotland on financial matters in divorce. The case of CJJ (M)R 2011 does not appear to formally amend the schedules to the Civil Jurisdiction and Judgements Act 1982 to incorporate lis alibi pendens(which essentially means the court can refuse to exercise jurisdiction where litigation is ongoing in another jurisdiction) and related actions into law.
If the Court of Appeal therefore agree with the Husband the loophole will be closed and any applications for interim maintenance would have to be dealt with in the Scottish courts as they have jurisdiction. However, if they decide in favour of the Wife then arguably the English Courts will be faced with more applications for maintenance.
If you have any issues in respect of relationship breakdown, divorce or financial matters ancillary thereto contact PMC Family Law Solicitors today. The team is headed up by Pauline McNamara and are more than happy to assist you. If you wish to get in touch to arrange your free initial consultation today, contact us by telephone on 0151 375 9968 or email .