Under the EU Maintenance Regulation, England and Scotland are different jurisdictions. English law on maintenance is more generous than the Scottish equivalent. The regulation allows an application for maintenance to be brought in any EU jurisdiction, providing the applicant lives in that country.
Villiers v Villiers is the first case in which the Court looked at the application of the regulation between two UK jurisdictions.
The parties lived in Scotland during their marriage but the wife moved to England after their separation. The wife originally issued divorce proceedings in England but then agreed to the divorce taking place in Scotland. She later applied for financial provision under English law.
The English court in the first instance awarded the wife maintenance and additional financial provision for legal fees. The Judge said that, although the divorce proceedings were in Scotland, there was no application in Scotland for financial provision. Therefore, the English courts had jurisdiction to deal with the wife's application for maintenance.
The husband appealed this decision. The husband asked the Court of Appeal to determine whether the English court should have halted the financial remedy proceedings on the basis that they were related to the divorce proceedings which were being heard in Scotland. Alternatively, the husband said the Court may have halted the proceedings as the Scottish court was the more suitable forum to hear the dispute.
The Court of Appeal upheld the maintenance award in England. They said that the divorce proceedings in Scotland were not related to the wife's English application for financial relief as there was no application for maintenance in Scotland. The Court also held that the regulations removed the power for them to halt the proceedings on the basis of the Scottish court being the most appropriate forum to hear the application.
The husband then appealed to the Supreme Court.
The Supreme Court dismissed the husband's appeal by a majority decision. The Court held that regulations did not allow for the Court to stay maintenance proceedings and reallocate them to another jurisdiction within the UK, despite having divorce proceedings issued there. This is because the two sets of proceedings are treated separately by the regulations. The English court was therefore able to hear the wife's maintenance application and it was permitted to award her maintenance.
This decision provides certainty to any party in divorce proceedings who applies for maintenance provision as it allows them to make their application in the country where they live.
However, the decision could lead to what is known as 'forum shopping'; where a party chooses to issue proceedings in the jurisdiction which is most beneficial to them. As outlined above, the laws governing maintenance are much more generous in England and Wales than in Scotland. Therefore, we may well see a financially weaker party moving over the border from Scotland to England following separation in the hope of receiving a more favourable financial settlement. Alternatively, the financially stronger party may be quick to move to a country with more stringent maintenance laws in an attempt to limit the claims against them.
Whilst this is the law that currently applies, when the UK leaves the EU, the regulations will no longer apply to either England or Scotland. Therefore, the situation is likely to change again.