Can a financial remedy claim be dealt with under an alternative jurisdiction to where the divorce petition was issued?

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Whilst divorce and finances are usually dealt with under the same jurisdiction, not all jurisdictions deal with them in the same way. The question of whether a financial remedy claim and divorce petition can be dealt with by separate jurisdictions was examined in the recent case of Villiers v Villiers which was heard by the Supreme Court.

Mrs Villiers applied for financial remedy under section 27 of the Matrimonial Causes Act 1973 in England, despite the parties having lived in Scotland for 16 years of their 17-year marriage and the Writ for divorce having been issued in Scotland by her husband.

Mrs Villiers would need to have demonstrated a real link to England or Wales in order to make her financial application here. For financial proceedings to continue to be dealt with in England and Wales in this case, it seems that the Court would need to establish that Mrs Villiers, as the financially weaker party, ought to benefit from the jurisdiction. Of course, what is considered fair and reasonable is an extremely subjective concept.

The Court of Appeal upheld the decision that the English Courts did have jurisdiction and that Mrs Villiers would receive £2,500 per month in interim maintenance and £3,000 per month for her ongoing legal costs from Mr Villiers.

The Supreme Court handed down its judgement on 1 July 2020, following a subsequent appeal by Mr Villiers. By majority, it dismissed the appeal, establishing that the Scottish financial remedy forum was a forum non conveniens (meaning inconvenient forum) in this case. The Villiers case therefore remained under the jurisdiction of England and Wales on this basis.

The main issue that the Supreme Court was asked to determine was 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 the remaining divorce proceedings are taking place separately in Scotland. Given that financial awards made in England and Wales tend to be more substantial, this was particularly significant.

The Court considered whether divorce proceedings and maintenance proceedings are ‘related actions’ for the purposes of Article 13 of the Maintenance Regulation 2011, and whether Schedule 6 of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 was ultra vires of section 2(2) of the European Communities Act 1972.

In summary, the majority judgment of the Supreme Court contained the following key points:

  • The Court was held to have had jurisdiction under Schedule 6 of the CCJMA.
  • The English Court had no discretionary power to stay proceedings on forum non conveniens grounds. As part of replicating the Maintenance Regulation for cases within the UK, this discretion had been removed.
  • The legislation was found not to be ultra vires.
  • The Scottish and English proceedings were found not to be related actions which meant the English Court was obliged to deal with the maintenance claim.

The pitfalls of ‘divorce tourism’ and pursuing maintenance claims in different jurisdictions

Many may regard Villiers v Villiers as an example of ‘divorce tourism’ or ‘forum shopping’, despite the Courts emphasising that they avoid this practice wherever possible.

What is sometimes described as ‘the quickie divorce’, is often seen as a tempting option by couples seeking to bring a speedy end to their marriage. However, this is not always a viable or even desirable course of action, particularly for those who have only been married for a short time and where maintenance is a consideration.

In England and Wales, there is an absolute bar to divorce in the first year of marriage whereas you can apply for a divorce within the first year of the marriage under Scottish law.

As a jurisdiction, Scotland may be the more favourable option in terms of securing a speedier divorce, it’s perhaps less desirable when it comes to dealing with finances, particularly in respect of maintenance payments. In Scotland, maintenance pay outs are limited to three years, and inherited wealth is not taken into account in the division of assets.

This is in contrast to the jurisdiction of England and Wales, where maintenance payments can be granted until death or remarriage of either party if the wealth of the paying party and/or facts of the case allow for it, and inherited wealth is a consideration in weighing up the liquid capital and other assets available to the parties.

England and Wales has a reputation for dealing with matrimonial finances fairly in comparison to many other jurisdictions. Indeed, the S.25 factors in the Matrimonial Causes Act 1973 allow us to equally value the contribution of the ‘homemaker’ and the ‘breadwinner’. This stands England and Wales in good stead for valuing all contributions to the marriage, financial or otherwise.

Arguably, someone who is seeking a prompt divorce would be attracted by the opportunity to issue the ‘main suit’ proceedings in Scotland. Crucially, however, the Petitioner would have to demonstrate a connection to the country in which they were issuing proceedings, whether it is by their domicile, their habitual residence, or on the basis they lived there for a period during the marriage.

Instead, it’s probably more sensible to issue in the jurisdiction under which you would prefer all matters to be dealt with. This avoids any uncertainty involved with potential accusations of so-called ‘divorce tourism’ or ‘forum shopping’.