High Court determines Anglo-Scottish jurisdictional dispute over maintenance under the EU Maintenance Regulation

Posted: 23/03/2016

Mrs Justice Parker has today, 23 March 2016, handed down her judgment determining jurisdiction for maintenance in an Anglo-Scottish divorce. The judge considered that, notwithstanding the Scottish court having jurisdiction for the divorce suit, the wife had been first in time in making an application for maintenance to the English court and, under the Maintenance Regulation lis pendens rule, the English court had jurisdiction to determine her claim. 

In this case Villiers v Villiers, partner, Jane Mitchell, and associate barrister, Camini Kumar, of Penningtons Manches LLP acted for the applicant wife (instructing Timothy Scott QC and Alexis Campbell). 

This is believed to be the first time the court has been asked to adjudicate on jurisdiction for maintenance between competing territorial units of the United Kingdom, which are treated under domestic law as if they are separate member states of the EU for the purpose of the Maintenance Regulation (Council Regulation (EC) No 4/2009). 

The Maintenance Regulation provides that, where proceedings involving the same cause of action and between the same parties are brought in courts of different member states, any court other than the court first seised, shall of its own motion stay its proceedings until the jurisdiction of the court first seised is established and, if that is established, the court second seised will dismiss proceedings before it. 

The wife brought her claim for maintenance in the English court using the ‘failure to maintain’ provision of section 27 of the Matrimonial Causes Act 1973. Section 27 of the Matrimonial Causes Act 1973 is a standalone provision for maintenance which does not depend upon a live divorce petition. The husband had applied by way of Initial Writ for a Scottish divorce but had not made a claim for maintenance within his Writ. Mrs Justice Parker rejected the husband’s assertion that the Writ impliedly or inherently included a financial claim and ruled that the English court has jurisdiction to determine the wife’s claims for maintenance. 

The issue is one of significance since the Scottish court takes a different approach to spousal maintenance, in particular normally limiting its duration to three years post-divorce, and not taking into account inheritance and potential benefits under a discretionary trust. The English court in contrast is entitled to treat such interests as “resources” within section 25 Matrimonial Cause Act 1973 (Thomas v Thomas [1995] 2 FLR 668). 

Commenting on the judgment, Jane Mitchell 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."

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