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Re V (European Maintenance Regulation) [2016] EWHC 668 (Fam)

Sep 29, 2018, 21:12 PM
Financial remedies – Jurisdiction – European maintenance regulation – Divorce petition in Scotland – No claim for financial award – Whether the wife was entitled to seek maintenance following divorce
The husband’s applications for a stay or dismissal of the wife’s claim for financial remedies on the basis of jurisdiction were dismissed.
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Date : Mar 29, 2016, 05:32 AM
Article ID : 114381
(Family Division, Parker J, 23 March 2016)

Financial remedies – Jurisdiction – European maintenance regulation – Divorce petition in Scotland – No claim for financial award – Whether the wife was entitled to seek maintenance following divorce

The husband’s applications for a stay or dismissal of the wife’s claim for financial remedies on the basis of jurisdiction were dismissed.


The husband and wife married in 1994 and lived for the majority of their married life in Scotland. They separated in 2012 and the wife moved with their daughter to Oxfordshire to stay with her brother.

The wife issued divorce proceedings in England and the husband filed an acknowledgement of service contesting the jurisdiction of the English court. He subsequently issued a writ in Scotland seeking a divorce, but whne service was attempted it was returned.

The wife issued proceedings under s 27 of the Matrimonial Causes Act 1973 for interim maintenance for herself and her daughter relying on her habitual residence in England and Wales for the purposes of the European Maintenance Regulation. Her English petition was dismissed by consent. The husband denied that there was jurisdiction principally on the basis that his application in Scotland was first in time. He applied for the wife's application to be stayed or dismissed.

The approach of the Scottish courts to maintenance differed in that maintenance was generally limited to 3 years post-divorce, and did not take into account interests under a will or potential benefits under a discretionary trust as resources within s 25 of the Act.

The court was satisfied that the Scottish court was not seised of the maintenance issue when the wife issued proceedings. It was clear that divorce in Scotland was a single process and if a financial claim was not made prior to the grant of divorce then the opportunity to make such a claim was lost. In this instance, the husband's writ included no mention of a financial claim.

The Maintenance Regulation allowed the potential maintenance creditor to choose the jurisdiction in which to make the application, even where there was no opportunity for the applicant for the divorce to bring maintenance before the court in which the divorce proceedings were issued.

The husband's application for a stay or dismissal was refused. Interim maintenance was awarded.

Case No: ZC15F00024
Neutral Citation Number: [2016] EWHC 668 (Fam)

IN THE HIGH COURT OF JUSTICEFAMILY DIVISION
IN THE MATTER OF COUNCIL REGULATION (EC) NO 4/2009 OF 18 DECEMBER 2008 (THE EUROPEAN MAINTENANCE REGULATION

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 23/03/2016



Before :

MRS JUSTICE PARKER

- - - - - - - - - - - - - - - - - - - - -

Between :

Re: V
“European Maintenance Regulation”

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Mr Timothy Scott QC and Miss Alexis Campbell (instructed by Penningtons Manches) for Mrs Emma Villiers (Applicant for maintenance and associated relief, Respondent to the Husband’s application for a stay)
Mr Charles Villiers (Respondent to the Wife’s application, Applicant for stay) In Person

Hearing dates: 22 & 24 July 2015

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Re V (European Maintenance Regulation) [2016] EWHC 668 (Fam)

Judgment
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