Divorce, Dissolution and Separation Act 2020 - the end of fault based divorce is in sight
Villiers concerned a husband and wife who married in England but had spent most of their married life in Scotland. When they separated, the wife moved to England and petitioned for divorce here, while the husband issued a writ for divorce in Scotland. As the parties last lived together in Scotland, the application for divorce was assigned to the Scottish court and the wife later agreed to her English petition be being dismissed. Whilst the divorce proceeded in Scotland, however, the wife issued an application in England under section 27 of the Matrimonial Causes Act 1973 for maintenance from the husband. At the time of the wife’s application, there were no financial applications before the Scottish court. The wife’s maintenance application was first in time. Frustratingly for the husband, it is not possible for an individual to ask the court to make orders against that individual so the husband, as the paying party, was unable to make an application in any event. The husband applied to stay or dismiss this application on the basis that the English court did not have or should not exercise jurisdiction to hear the application.
Section 27 says that a party may apply to the court if their spouse has failed to provide reasonable maintenance for them or their children. In order for the English court to deal with an application under this section, it must have jurisdiction to do so under the EU Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, which the husband argued that it did not have.
The Supreme Court decided that section 27 can apply in both interstate and intrastate cases, namely those where the divorce takes place in another country within the UK (in this case, Scotland) as well as those where the divorce takes place in another EU country outside of the UK. The object of the EU Maintenance Regulation (and specifically the mandatory rule in Article 3) is to provide special protection to a party wishing to claim maintenance by giving them the right to choose the jurisdiction most beneficial for them out of the range of options specified. When read together with Schedule 6, all cases with an international dimension are covered.
The English court in normal circumstances has a general discretion to stay proceedings on the grounds of forum non conveniens. The essence of the rule is that there is another country which is better suited to hear the case so the proceedings in England are dismissed to allow the case to go forward in the court of that other country. However, Schedule 6 removes this discretion, which the Supreme Court concluded was permissible, therefore no forum non conveniens discretion was available.
Finally, the Supreme Court found that Article 13 of the EU Maintenance Regulation did not apply. Article 13 makes clear that where there are ‘related’ proceedings taking place in the court of another EU country, the court faced with the section 27 application may decline to hear it. In Villiers, as divorce proceedings were taking place in Scotland, the husband argued that the divorce and maintenance claim were ‘related’ and the English court should therefore decline jurisdiction to hear the wife’s section 27 application. The Supreme Court disagreed, finding that there was no relevant connection between the wife's maintenance claim and the proceedings commenced by the husband in Scotland concerning their marital status. Only other maintenance claims would be deemed to be sufficiently ‘related’ to warrant the court declining jurisdiction.
Essentially, Villiers confirms that it is possible for a party to bring financial claims limited to maintenance in England (provided they or their spouse are habitually resident here), even though the divorce and main financial proceedings are being dealt with in another EU country, and crucially for this case, that this finding applies to intrastate cases (i.e. different countries within the UK).
A party may consider this where England is more convenient or English law offers the prospect of a more generous maintenance provision than the country in which the divorce is taking place. For example, in Scotland, more emphasis is placed on achieving a clean break and maintenance orders are generally limited to 3 years, perhaps showing why the wife in Villiers turned to the English court.
When the Brexit implementation period ends on 31 December 2020, the EU Maintenance Regulation will no longer apply to the UK. Instead, jurisdiction to deal with maintenance will be decided by reference to national law. In order to bring an application under section 27, either party will need to be domiciled in England, or the applicant will need to have been habitually resident in England for one year preceding the application, or the respondent will need to be resident in England. The one year rule is likely to restrict the availability of section 27 for those in a similar position to the wife in Villiers.
Where there are competing jurisdictions, the forum non conveniens rule will return to the fore, meaning that the English court will have discretion to dismiss a case if it decides that the court of another country is better suited to hear it. Alongside this, paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 provides the English court with discretion to impose a stay if there are other proceedings concerning the marriage continuing in another country, if it considers it is in the balance of fairness to do so. In Villiers, the fact that the divorce and main financial remedy proceedings were taking place in Scotland may have meant that the wife would not have been able to bring her section 27 application in England.
However, being first in time to commence proceedings may still be important in our post-Brexit future. As stated above, whether the country is first in time, may be a relevant factor when the English court is consider whether to exercise is discretion to stay proceedings under the 1973 Act. Outside of England, timing may be key for the purpose of the competing country’s national law. After Brexit, it will be essential to take local advice in any possible competing countries, and in particular to consider whether timing is a factor.
Accordingly, whilst Brexit looks likely to spell the end to the Villiers loophole in so far as the Maintenance Regulation is concerned, it will not necessarily spell the end to the race to court where starting proceedings in one country before proceedings are started in a competing country is likely to be key.
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Stacey Nevin is a Senior Associate in Kingsley Napley’s family and divorce team. She advises UK and international clients on matters involving all aspects of family law, in particular complex financial issues (including trust arrangements); cross-border disputes; private children cases; and nuptial agreements. Stacey has written extensively on Brexit and she is a member of the Brexit Working Party to the Resolution International Committee and Property, Tax and Pensions Committee, a group of lawyers formed to consider the impact Brexit will have on family legislation in England & Wales.
Liam Hurren is a Legal Assistant in the family and divorce team. He has assisted partners and associates in the Family team to run a range of cases from complex financial remedy litigation to urgent non-molestation matters. He has been responsible for preparing court documents and correspondence; liaising with clients, counsel and experts; dealing with intricate financial disclosure and researching points of law. Liam has regularly attended client meetings, conferences with counsel and court hearings in the work he has undertaken.
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