Update - maintenance in England while divorce proceeds in Scotland

July 29, 2020
Posted by:
Kirsty Morris

The recent Supreme Court decision in Villiers v Villiers [2020] UKSC 30 has raised the issue of spousal maintenance claims in England and Wales in the national press once again. The English courts are already generally viewed as a generous forum for determining financial claims on divorce compared to our neighbouring jurisdictions of France and Scotland. Maintenance awards are made to ensure that the financially weaker party’s income needs are met following the breakdown of the marriage. Upon divorce, the English courts recognise that to achieve a fair outcome, and to ensure needs are met, one spouse may have to receive spousal maintenance from the other for a period of time. In this jurisdiction, the court has a broad discretion (and a wide toolkit of powers) to deal with each case on its own facts.

The issue in Villiers was whether the English courts are able to deal with maintenance claims when the divorce and financial proceedings took place in Scotland. The case concerned a husband and wife who had spent their married life in Scotland, before the wife moved to England upon separation. It was accepted by both parties that the divorce should take place in Scotland (it has been long been established that where there is a question about whether Scotland or England is the correct jurisdiction to start proceedings, the court looks at the country in which the parties last lived together as a married couple). In Villiers, the Supreme Court (by a majority of 3 judges to 2) decided that (as a result of specific EU legislation) it is possible for a spouse to choose to bring a maintenance claim in a different UK jurisdiction (if more convenient) even if the divorce and financial claims are being dealt with by a different court in a different jurisdiction.

Rather than clarify matters, this judgment potentially complicates things for couples who have lived happily in Scotland or England for the duration of their marriage and choose to move to different countries following their separation. While the divorce should take place in the country in which the couple last lived together (with a few exceptions), the person claiming spousal maintenance may be able to bring a claim for maintenance in England (as a result of the Scottish financial process on divorce, an application is unlikely to be made the other way round). As this development is possible as a result of EU legislation, it remains to be seen what will happen after the Brexit transition period ends at the end of this year. If the UK are able to rely on certain international conventions, the Villiers decision may stand. If we go back to relying on English and Scottish laws, the ability for the person applying for maintenance to make an application in their new homeland is likely to be lost.  

The Villiers decision makes it even more important for clients who live a life both north and south of the border to seek advice at an early stage so that the potential maintenance divide can be considered and the case can start on the right foot and in the correct jurisdiction.

For further assistance with a separation involving the Scottish and English jurisdictions, Legal Director Kirsty Morris is dual-qualified. Please contact her on 0203 824 9950 or mail@burgessmee.com for more information and to arrange a consultation.

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