The relationship between Scotland and England has always been a tumultuous one, but history tells us the two nations are more alike than either would care to admit. There was indyref followed by brexit which has prompted talk of indyref2 then to finish it all off 6Nations2018…. As a Scot living in London and solicitor qualified in both jurisdictions, I have more skin in the game than some.
The maintenance divide
Our shared values are put to the test when considering financial provision on divorce, where being a few miles North or South of the border makes all the difference to the determination of the financial settlement. While ‘needs’, ‘compensation’ and ‘sharing’ are the fundamental principles underlying financial awards in England, in Scotland the Courts look to achieve more of a broad-brush ‘fair’ division of the matrimonial assets. Unlike the wide discretion afforded to Judges pursuant to the Matrimonial Causes Act 1973, claims under the Family Law (Scotland) Act 1985 follow a more rigid formula. The most notable difference is that in Scotland, the obligation by one spouse to support the other ends with the marriage. Continuing regular spousal maintenance is uncommon and, when awarded, extremely limited. In Scotland, in the period following a couple’s separation but preceding the carving out of the final financial settlement, it is common for one party to ‘aliment’ the other (i.e. make monthly spousal payments). Following divorce however, spousal payments are only awarded for up to three years; a blink of the eye in the context of many marriages.
Villiers v Villiers
The case of Villiers v Villiers is threatening to rock the boat however, as Mrs Villiers is seeking (and so far succeeding) to use a legal loophole to ask the English Courts to order her husband to pay her interim spousal maintenance and funds to meet her legal fees.
When Mr and Mrs Villiers separated, Mrs Villiers moved to London with the parties’ child having spent most of the marriage living in Scotland. The divorce is proceeding in Scotland so the wider financial issues will be dealt with there. Despite this, Mr Villiers did not open his financial claims straight away so Mrs Villiers took the opportunity to make an application for interim maintenance in England because Mr Villiers was failing to maintain her.
The first decision
At the first Court hearing last year, Mrs Justice Parker reviewed the relevant European legislation and decided that i) England and Scotland should be treated as separate Member States for the purposes of the EU Maintenance regulation; and ii) the rules which are applicable between Member States apply between the associated parts of the UK. She ordered Mr Villiers to pay his wife £2,500 a month general interim maintenance and £3,000 a month towards her legal costs. This is a new interpretation of the EU Maintenance regulation and it is being challenged by Mr Villiers and his legal team.
Mr Villiers is appealing this decision and the result of the appeal could have a wide-reaching impact on the manner in which cases are dealt with North and South of the border. The Appeal Court has to decide whether spouses can use this very limited legal loophole to receive maintenance through the English Courts, even though Scotland is dealing with the finances as a whole.
The Appeal Court’s decision is expected later this year and we will be keeping a keen eye out for updates.