Divorcing in England or Scotland – Supreme Court to decide jurisdiction
The Supreme Court is preparing to hear a divorce case that could have significant implications for the controversial practice of forum shopping (a term used to describe the practice of choosing to raise your legal case in the jurisdiction which may be likely to favour you best).
Mr Charles Villiers filed for divorce in 2014 in Scotland as he and his wife, Emma Villiers, spent almost all of their married life in that country. The couple married in 1994 but separated in 2012. Emma Villiers then moved to England with their daughter in 2013. She issued a divorce petition in the English courts but this was dismissed with her consent in favour of Charles Villiers’ writ of divorce issued in Scotland.
However, in 2015 Emma Villiers then made an application in England in order to seek maintenance from her husband. Since England and Scotland have different approaches to financial provision and Mr Villiers had issued divorce proceedings in Scotland, he opposed the maintenance application on the grounds that the English courts do not have jurisdiction to deal with his wife’s maintenance application.
At the first hearing, Mrs Justice Parker said the English courts did have jurisdiction and made an order that the husband pay the wife £2,500 per month in interim maintenance as well as £3,000 per month for legal funding. Mr Villiers appealed this decision but he lost and the original order was upheld by the Court of Appeal. Mr Villiers was given permission to take the case to the Supreme Court, who finished hearing it in December. They will need to decide whether the courts of England and Wales have the power to stay an application for maintenance pursuant to section 27 of the Matrimonial Causes Act 1973 on the grounds of forum non conveniens when divorce proceedings are taking place in Scotland. They will also consider whether divorce proceedings and maintenance proceedings are ‘related actions’.
This case highlights the very different approach to financial provision on divorce on both sides of the border and illustrates the fact that even questions of what is considered “fair” are very subjective. The debate on whether England should follow Scotland in being more rigorous in excluding assets from division which originate from outside the marriage (either because they were generated before or after the marriage, or inherited) continues and the outcome of this case will go some way to answering these questions.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors.