A decision on 23 March 2016 (Re V (European Maintenance Regulation)  EWHC 668
) by the English High Court (Mrs Justice Parker) has made public what has been known by international family lawyers for many years: the financial treatment of wives as applicant spouses on divorce is incredibly different between England and Scotland. Particularly, it affects the conventional 'stay at home' wives who have sacrificed careers and their own work to support their spouse and the family household.
In England, such a spouse would anticipate spousal maintenance for life, or at least until retirement when a pension share would be received and at a generous standard. In Scotland, the spousal maintenance lasts a couple of years after the divorce at most. It has anecdotally led to considerable tactics and manoeuvring for Anglo-Scottish families living between England and Scotland. Although there is a UK law setting out mandatory provisions on where proceedings in the UK should occur, there are inevitably ways around it. It was alleged such manoeuvrings had occurred in this case.
This is only a brief overview of Re V
. It covers a few features from the judgment. Paragraph numbers refer to the judgment itself. The husband acted in person and it may be that other elements and uncertainties in the law could have been explored in the judgment if these had been presented.
The EU Maintenance Regulation within the UK
This EU law deals with automatic recognition and enforcement of maintenance court orders around the EU. Maintenance is widely interpreted to mean needs, although classically includes spousal maintenance sometimes known as alimony. The EU law also incorporated provisions when more than one country could deal with proceedings because of international connections of a family. It is essentially who is the first to lodge the proceedings, known as lis pendens. This has been heavily criticised by many lawyers as being contrary to good practice, attempts to resolve matters through mediation and negotiation and encouraging a race to court and tactical litigation. But the EU likes this law.
England and Scotland are part of the UK which is one Member State for EU purposes. Another EU family law known as Brussels II, which covers divorce law, doesn't apply between England and Scotland because the UK is all one Member State.
However, the EU Maintenance Regulation specifically operates between England and Scotland and the other counties in the UK almost as if they were separate member states (paras - of the judgment, albeit paras  and  seem to have gone walkabout and do not appear in the published Bailii version). So, between England and Scotland, it is important to work out where the maintenance proceedings were first lodged (para ), even if tactical and without a closer connection, because this is where maintenance (needs) will be decided.
Moreover, the EU is perfectly happy with one set of proceedings regarding a family occurring in one country and another set in another country (para ). So, by EU law, divorce proceedings may be in one country and maintenance (claims for needs) can be in another country. To many English observers this seems very strange, and likely to increase costs significantly and decrease the prospects of an overall settlement of all disputes concerning separating families.
So, in this particular case, although there was a divorce issued first in England, the question was whether the maintenance claims should be in England or Scotland. This required a detailed analysis of the procedure in each country with several expert opinions from specialist Scottish lawyers.
Very different financial outcomes between England and Scotland
Despite being part of one UK, the family law of England and Scotland is very different indeed. Scottish law has more similarities with French law and, indeed, there are close historic connections. Similarities between English and Scottish family law is more likely because of worldwide trends than through being part of a United Kingdom.
This is found in a number of quite significant differences. Perhaps one of the most stark is spousal maintenance, sometimes known as alimony (see para ). In England, in a suitable case, it may well be for joint lives or, increasingly, when a pension share takes effect on retirement age. This may, therefore, be many years. Spousal maintenance can also be quite generous, perhaps based on the standard of living of the marriage if that is sustainable. In Scotland, spousal maintenance is normally limited to 3 years post-divorce. There is a far greater expectation that the woman, as invariably the applicant and the financially weaker party, will go back into the workplace quickly after the divorce, irrespective of child responsibilities and irrespective of inability to return to premarital levels of earnings ad the lack of recent workplace experience.
Moreover, Scottish law does not take into account interests under a will or potential benefits under a discretionary trust (para ). England will treat such interests as resources available for distribution for a fair settlement.
There are other differences significantly affecting the financial outcomes on divorce in a case with identical circumstances decided north or south of the border.