England granted jurisdiction in Anglo-Scottish maintenance dispute

Topics: Family and children,Courts business

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  • Jane mitchell

A High Court judge has ruled that an English court has jurisdiction over a maintenance dispute, despite the couple’s divorce being granted in Scotland.

The dispute over jurisdictions arose in Villiers v Villiers after the wife filed maintenance proceedings in an English court a few months after her husband had filed for divorce in Scotland.

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The couple had lived in Scotland together for 12 years, until they separated in April 2012 and the wife moved to England.  

Although the husband had filed for divorce, he had not included a claim for maintenance in his petition. He said that by applying for divorce, the issue of maintenance was implied, as Scottish courts cannot pronounce a divorce whilst financial issues are outstanding.

The dispute was heard in the High Court, where the two territories were treated as if they were separate states under the EU Maintenance Regulation.

Under the regulation, if multiple proceedings on the same issue are filed in different EU courts, the court where the case was first filed has jurisdiction, and all other courts must stay proceedings.

Mrs Justice Parker rejected the husband’s argument that his divorce petition inherently included a financial claim, and ruled that the English court has jurisdiction over the maintenance dispute as the case was first filed in England.

Penningtons Manches, the national firm representing the wife, said it was the first reported intra-UK case under the maintenance regulation.

Jane Mitchell (pictured), a solicitor at the firm who acted for the wife, said: ‘This decision is very welcome in highlighting an important point which can be overlooked, namely that England and Scotland are treated as separate EU member states for these purposes and that a ‘jurisdictional race’ may therefore take place between them’

Simon McKirgan, a senior director at divorce firm Vardags, told the Gazette that by failing to secure jurisdiction over the financial claim, the husband in this case left himself ‘exposed’ to a high maintenance claim in England.  

He said: ‘In England, wealthy spouses can be ordered to maintain their spouses for life, regularly at high levels, commensurate with the standard of living during the marriage. In Scotland, the law is very different, with maintenance limited to a three year adjustment period in most cases.’

He added: ‘Issues like this show just how vital proper advice can be when involved in cross-jurisdictional disputes, as neighbouring countries can easily have hugely different interpretations of family law.’

Readers' comments (6)

  • Another good reason for getting out of EU (if one were needed, that is!)

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  • It's a pretty ropey reason David, to be honest.

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  • David, as an Englishman living and working in Scotland I fail to see how being outside the EU would prevent this being an issue. They are not "separate EU member states for this purpose", they are separate legal jurisdictions for all purposes. The same issue would arise if the UK leaves.. There seems to have been a reluctance to recognise different practices in Scotland, since I would suggest the Scottish courts were handling maintenance, for the reasons stated (i.e. they could not grant the divorce without doing so). Seems a bit of jurisdiction-grabbing, and I wonder how the LSG (and the press generally) would have reacted had the position been reversed, and the Court of Session had told London to back off?

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  • Since starting to 'work' in EU I have been told that if I want to drag a case out file in the Rome County Court. Cases there take years to come to a conclusion and all the time this blocks any other jurisdiction from becoming involved. They call it 'forum shopping' here in Rome from where I am writing this, but not as in 'a funny thing happened...'

    And as a matter of interest, Peter, will the SRT in Schedule 45 FA 2013 now apply to decide whether a person is to be taxed in England, or in Scotland, now that two rates of tax apply? My son is training as an accountant in Glasgow and we are trying to find out if it does. Thanks in advance.

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  • David, don't confuse EU and UK stuff generally with Anglo/Scottish jurisdictional issues - even if the EU has added its twopenny worth.

    This case turned (subject to appeal) as most do on its facts. The judgment wasn't accessible from the link when I tried as its reported name is different. It's worth (as they all are if you're going to have a go at them) reading.

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  • Thanks, Richard, but here in Trieste it's just a bit of a challenge. A lady I spoke to on a train in Sardinia said quite categorically "nothing ever happens in this country without corruption payments". And I read in yesterday's Le Monde that Frederica Guidi resigned on Thursday as the Italian government's minister for economic development because of corrupt contract awards to her partner's company. And my taxi driver yesterday confirmed what I had noticed i e that all police cars in Italy are either Fiats or Alfa Romeos.

    And there are still those voices crying out in the wilderness that this place is not corrupt.... When, if ever, will they wake up and see the writing on the wall?

    PS If you ever have a custody dispute with a opponent who is German, for goodness sake get your application in in UK first, because if the German courts are seised first your client will be lucky if he or she ever even sees his or her child again.

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