Tourism over the summer months has become the impossible dream. But "tourism" in the sense of where to gain the best outcome for spousal maintenance is here to stay. That is the net effect of the decision of the case of Villiers issued by the Supreme Court today.
The facts of this case and issues are well narrated elsewhere.
Mrs Villiers made an application to the High court in England to address what maintenance should be paid to her. Her husband had already applied for divorce in Scotland as that is where they last resided together while married. Mr Villiers argued that the English Court did not have the ability to deal with the application for maintenance raised by his wife. He insisted that the Court in Scotland was the more appropriate place to decide such matters; it being accepted by both parties that Scotland was the right place to deal with their divorce.
The English Court decided that it could consider Mrs Villiers maintenance application and did. The Court of Appeal in England agreed.
And so, Mr Villiers's took the matter to the Supreme Court.
The Supreme Court was asked to decide three main questions (and here comes the technical bit):
Whether divorce proceedings and maintenance proceedings are ‘related actions’ – did the relevant maintenance regulation mean to allow for this splitting of the divorce and the finances?
The Supreme Court has decided no, to the related actions part. The position regarding maintenance flows from a piece of European law which is given effect in the UK. Following European law, jurisdiction for maintenance claims and jurisdiction for divorce proceedings have always been subject to different rules. The purpose of the maintenance regulation is to give the spouse claiming maintenance a choice about where to do so – the divorce proceedings in Scotland and the wife's maintenance claim in England are not related.
Can and should the courts in England and Wales pause an application for maintenance on the grounds of forum non conveniens (there being a better place for the matter to be decided) when divorce proceedings are taking place in Scotland?
No – There is no scope for the more convenient forum principle to apply. It is intended that the spouse claiming maintenance should have the choice of which court is most convenient, least expensive for them and allows for the most generous maintenance provision (a significant factor as between Scotland and England and Wales – of which more below).
Is the provision for allocating jurisdiction within the United Kingdom relating to maintenance matters beyond the powers of the law to regulate implementation of any EU obligation in the UK (the shorthand version of this question!)?
No – Our domestic law adopted the same rules set out in the piece of European law to decide whether a court in Scotland or a court in England should hear a claim for maintenance.
Where does the decision leave us?
In a previous blog, Richard Smith summarised the various issues which would arise if the decision was to stand and why the decision is important.
By interpreting the maintenance regulations as they have, the door remains open for a spouse to choose where to apply for maintenance.
As between Scotland and England and Wales, an application for maintenance in England is almost always going to be the more attractive proposition - in England, the Courts can order maintenance to be paid for a long time, whereas in Scotland maintenance is generally limited to a maximum period of three years after divorce.
In some circumstances that may be fair. Where there is very little matrimonial property to share after a long marriage, as was the case for Mrs Villiers, it is arguable that the outcome should be that maintenance is paid for a longer period and our laws in Scotland don't provide for that. Why should she not look for a better outcome?
Conversely, what about certainty for those in the same shoes as Mr Villiers who have lived in Scotland throughout their marriage and expect to be able to deal with all of the financial consequence of the marriage under Scots law?
What is certain is that this decision is likely to result in a rise in litigation involving both Scotland and England and Wales. For family lawyers it will be even more important to consider carefully cross-border connections for families living apart.