Forum shopping for maintenance

After a very long wait, the Supreme Court has given its judgement about whether a wife could claim maintenance in England whilst her husband brought divorce proceedings in Scotland.

After an 18 year marriage, most of which was spent living in Scotland, Mrs Villiers separated from her husband and moved to live in England. After settling in England, Mrs Villiers issued a Petition for divorce in 2013 but a year later her husband issued divorce proceedings in Scotland. The advantage of Scottish divorce proceedings for Mr Villiers was that if a maintenance order was made in Scotland, it would almost certainly not last for more than 3 years whereas in England, Mrs Villiers might get maintenance for the rest of her life.

Because the parties had last lived together in Scotland, Mrs Villiers could not pursue her English divorce proceedings once her husband had started a divorce in Scotland so she had to abandon those proceedings but then she issued an application for maintenance in the English Courts. Mrs Villiers only issued this application because she could no longer pursue the financial claims in her English divorce petition. Mr Villiers tried to stop the maintenance proceedings in England on the basis there were similar proceedings already going on in Scotland because of the divorce there. However, the Scottish divorce proceedings did not include any claim for financial orders and Mrs Villiers maintained therefore they were not “related actions” and could therefore proceed separately in different courts in different countries at the same time.

After 4 years of proceedings, the Supreme Court has just decided that the maintenance proceedings in England and the divorce proceedings in Scotland were not “related actions” and therefore Mrs Villiers can carry on with her claim for maintenance against her husband.

Whilst these may sound like complicated and unusual circumstances, the same rules that would apply as regards concurrent proceedings in England and Scotland will also apply to similar proceedings going on in any two of the 28 European countries each with their own system of family law and in fact cross border disputes in family law cases are not at all uncommon.

We are just 12 miles from the Scottish border and often advise on cross border issues. We have access to Scottish Solicitors for advice on the Scottish position when necessary and have already dealt with one Villiers type case. If you require advice on such cases then please contact Simon Mortimer on 01228 552222.