The Supreme Court is preparing to hear a divorce case that could have significant implications for the controversial practice of forum shopping.
Charles Villiers, a relative of the Duchess of Cornwall, filed for divorce in 2014 in Scotland, where he and his wife, Emma Villiers, spent almost all of their married life. On Monday the UK's highest court will consider whether Emma Villiers can pursue a maintenance claim in a different jurisdiction.
The couple married in 1994 but separated in 2012. Emma Villiers moved to England with their daughter in 2013. She issued a divorce petition in the English courts. This was dismissed with her consent in favour of Charles Villiers' writ of divorce which was issued in Scotland.
However, in 2015 Emma Villiers made an application under section 27 of the Matrimonial Causes Act 1973 in England seeking maintenance. England and Scotland have different approaches to financial provision.
Charles Villiers argued that the English court did not have jurisdiction to deal with her maintenance application. However, at first instance, 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. The Court of Appeal upheld the order.
The Supreme Court will consider 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’.
Family lawyers will be following the case, which has attracted widespread media coverage, closely.
Simon Blain, a partner at London firm Forsters, said: 'There is much debate as to 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).
‘The case of Villiers 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.'