Villiers v Villiers (Rev 1) [2020] UKSC 30

Mrs Villiers, habitually resident in England after separating from her husband in Scotland, applied in England for maintenance under section 27 of the Matrimonial Causes Act 1973 while divorce proceedings continued in Scotland. The Supreme Court held, by majority, that the English court had jurisdiction and no power to stay the application.

Facts

The parties married in England in 1994 and lived together in Dumbarton, Scotland, from 1995 until their separation in 2012. The wife then returned to England and became habitually resident there. The husband remained habitually resident in Scotland. The wife issued a divorce petition in England in 2013, but the husband subsequently lodged a writ for divorce in Scotland in 2014. Because the parties had last resided together in Scotland, the divorce proceedings had to be determined there. The wife consented to dismissal of her English petition on 16 January 2015 and, on 13 January 2015, issued an application in England under section 27 of the Matrimonial Causes Act 1973 seeking periodical payments and a lump sum maintenance order. The husband’s Scottish writ sought only a decree of divorce with no ancillary financial relief. Parker J rejected the husband’s jurisdictional challenge and made an interim order. The Court of Appeal dismissed the husband’s appeal.

Issues

Four issues arose: (1) whether section 27(2) of the 1973 Act permits an English court to make maintenance orders in purely domestic cases without any international dimension; (2) whether the English court retained a discretion to stay maintenance proceedings on forum non conveniens grounds following the promulgation of Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011; (3) whether any purported removal of the forum non conveniens discretion by Schedule 6 was ultra vires the Secretary of State’s powers under section 2(2) of the European Communities Act 1972; and (4) whether the Scottish divorce proceedings were a “related action” for the purposes of article 13 of the Maintenance Regulation (Council Regulation (EC) No 4/2009) as applied by Schedule 6.

Arguments

Husband (Appellant)

The husband argued that section 27(2) applies only where a case falls within both the Maintenance Regulation and Schedule 6, so it does not apply to purely domestic cases. Alternatively, he argued that the forum non conveniens discretion preserved by section 49 of the Civil Jurisdiction and Judgments Act 1982 survived the 2011 Regulations, and that the Scottish divorce proceedings were a related action within article 13 justifying a stay of the wife’s English claim. He further contended that, if Schedule 6 excluded the forum non conveniens discretion, this exceeded the Secretary of State’s powers under section 2(2) of the 1972 Act.

Wife (Respondent)

The wife argued she had a right as maintenance creditor to choose her jurisdiction from those listed in article 3 of the Maintenance Regulation, that Schedule 6 replicated this scheme domestically, and that the Scottish divorce proceedings were not a “related action” because they concerned only marital status and not maintenance.

Judgment

The Supreme Court, by a majority (Lord Sales, Lord Kerr and Lady Black; Lord Wilson and Lady Hale dissenting), dismissed the appeal.

Issue 1: Section 27(2)

The court unanimously held that section 27(2) covers both inter-state and intra-state cases. The Maintenance Regulation governs inter-state cases while Schedule 6 governs intra-state cases; together they cover the whole field. The husband’s construction would deprive the provision of practical effect.

Issue 2: Forum non conveniens

The majority held there is no residual discretion to stay maintenance proceedings on forum non conveniens grounds. Article 3 of the Maintenance Regulation establishes mandatory rules conferring a right on the maintenance creditor (regarded as the weaker party) to choose the jurisdiction most beneficial to her. Following Owusu v Jackson (Case C-281/02) and R v P (Case C-468/18), the scheme excludes forum non conveniens. Schedule 6 replicates this scheme for intra-state cases. Section 49 of the 1982 Act does not apply because Schedule 6 sits outside that Act.

Issue 3: Ultra vires

The court unanimously held that Schedule 6 was within the Secretary of State’s powers under section 2(2)(b) of the 1972 Act, as it dealt with matters arising out of or related to EU obligations and the operation of section 2(1).

Issue 4: Related actions

The majority held the Scottish divorce proceedings were not a “related action” within article 13. Lord Sales reasoned that article 13 must be interpreted in light of the fundamental objective of protecting the maintenance creditor’s choice of jurisdiction. The word “actions” refers primarily to maintenance claims. The divorce proceedings concerned only marital status; the subject matters were distinct and separated for jurisdictional purposes under successive EU regimes. There was no risk of irreconcilable judgments because a maintenance award under section 27 can survive divorce. Moore v Moore [2007] EWCA Civ 361 supported this approach, and N v N [2012] EWHC 4282 (Fam) was wrongly decided.

Lady Black agreed, emphasising that articles 12 and 13 must be distinguished and that a divorce proceeding and a maintenance claim cannot produce irreconcilable judgments because section 27 provision can survive divorce (section 28 MCA).

Dissent

Lord Wilson (with Lady Hale) would have allowed the appeal, holding that article 13 must be construed broadly, following Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32, so as to give effect to article 13(2). On that construction, the Scottish divorce proceedings and English maintenance claim were related actions. He expressed concern about the adverse consequences of the majority’s narrow construction, including untrammelled forum shopping and fragmentation of family financial proceedings.

Implications

The decision establishes that, within the framework of the Maintenance Regulation and Schedule 6 to the 2011 Regulations, a maintenance creditor habitually resident in one part of the United Kingdom has a strong right to choose her forum for maintenance proceedings, which cannot be overridden on forum non conveniens grounds or through article 13 where the rival proceedings concern only marital status. The court confirmed that maintenance obligations and marital status are treated as distinct matters for jurisdictional purposes under the EU regime as transposed domestically.

Practically, the decision means spouses in cross-border or cross-jurisdiction UK situations may face fragmented proceedings, with divorce determined in one jurisdiction and maintenance in another. This may enable maintenance creditors to take advantage of more generous maintenance regimes (such as that in England and Wales compared with Scotland). The decision matters particularly to family law practitioners advising on cross-border financial claims and to spouses considering where to commence proceedings.

The decision is narrow in scope: it turns on the specific objectives of the Maintenance Regulation (protection of the maintenance creditor) and the specific facts that the Scottish proceedings sought only a decree of divorce without any financial claim. The majority expressly left open the possibility that other factual scenarios, such as cross-maintenance claims between spouses, might fall within article 13. The court also directed the Secretary of State to submit proposals for belated compliance with Regulation 10 of the 2011 Regulations, which had required a review report by June 2016.

Verdict: Appeal dismissed. The Supreme Court held, by a majority of three to two (Lord Sales, Lord Kerr and Lady Black; Lord Wilson and Lady Hale dissenting), that the English court had jurisdiction under section 27 of the Matrimonial Causes Act 1973 to entertain the wife’s maintenance application, that there was no residual forum non conveniens discretion to stay the proceedings, that Schedule 6 to the 2011 Regulations was not ultra vires, and that the Scottish divorce proceedings were not a “related action” within article 13 of the Maintenance Regulation.

Source: Villiers v Villiers (Rev 1) [2020] UKSC 30