English courts have authority over maintenance in Scottish divorce

Divorce|March 30th 2016

The English courts can rule on the payment of maintenance by a man living in Scotland, a judge has ruled.

In Re V, the couple in question were married in 1994 and moved to Scotland the following year. They went on to have a daughter, now in “early adulthood”. By 2012, however, the relationship was crumbling. They separated and the wife moved back to England to stay with her brother. She and her daughter claimed the husband indulged in domestic abuse, but he firmly denied this. The former couple are now intent on divorce.

The wife launched divorce proceedings in England. She claimed she had lived in the jurisdiction of England and Wales for 12 months by that point and had thereby acquired ‘habitual residence’ (residence for legal purposes).

Progress was delayed when the husband went bankrupt. Eventually, he contested the jurisdiction of the English courts, saying the wife as actually habitually resident in Scotland, where they had spent the entirety of their married lives. He filed a writ for divorce in Dumbarton Sheriff Court.

The wife’s legal team argued that the writ was not legally valid. It made no reference to the proceedings in England but he said this was because they were no longer recognised under Scottish law because more than a year had passed. Meanwhile, the husband had still been an undischarged bankrupt when the writ was issued.

The case continued, with each side making allegations about the other. The husband claimed the wife was avoiding his writ – she insisted she hadn’t seen it after moving to London.

Later the wife agreed to drop her divorce petition in England, on the basis that the competing jurisdictions were both within the UK. She did, however, file a claim for maintenance, under section 27 of the Matrimonial Causes Act 1973. This governs ‘Financial provision orders, etc., in case of neglect by party to marriage to maintain other party or child of the family.’

Her application went before the High Court. Mrs Justice Parker was asked to decide which jurisdiction – England or Scotland – had authority over the claim and therefore which legislation applied. Despite both being part of the United Kingdom, the two countries were treated as separate states under the EU Maintenance Regulation. This governs claims made across two or more member states.

The Regulation states that when claims are made in different jurisdictions, the first court in which the case was filed takes precedence. In legal terms, this is the first court to be ‘seised’. Any other jurisdictions must then ‘stay’ (withdraw from) the case.

The problem for the husband was that his divorce writ had made no mention of maintenance. He argued that it was implied because Scottish courts cannot complete a divorce until financial issues have been resolved.

But Mrs Justice Parker rejected this argument, ruling that the English courts held jurisdiction over the wife’s maintenance claim.  She explained:

 “The evidence is clear that divorce in Scotland is a single process, and also that unless a financial claim is made prior to the grant of the divorce the opportunity to make such a claim is lost. That is a quite different issue from whether the divorce writ itself impliedly or inherently includes a financial claim. It is quite plain that it does not. The service documents appended to the writ with their invitation to W to make a claim do not create a claim by either H or W.”

The ruling can be read here.

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  1. Andy says:

    This example just shows that legal costs escalate to such a extent that you lose sight of the actual argument.
    This example also indicates what useless and time wasting court time to conclude this..Just like the TAX system, complicated, inaccurate and costly…
    This example should have been simplified and time scales supported to bring this debacle to an end..who ever did what,said what, accused of what and should be thrown out so lives can be rebuilt…
    The only winners are the legal team and courts…

  2. Luke says:

    “The only winners are the legal team and courts…”
    THAT’S the reason it is as it is 🙂
    Look, it’s understandable, lawyers invest a lot of time and effort in their education and have worked hard so they want a return. The fact that the whole system is not fit for the people who need to use it and should be massively simplified is not the fault of an individual lawyer, they want to pay off their mortgage and make money just like everybody else.
    The legal system needs root and branch reform to make it much cheaper but the last people who are going to want that is the people who are currently in the profession. This is why no fundamental change will ever come from within – no group of human beings would do it, they rationalise the situation – it’s human nature.

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