The case of Villiers v Villiers – the loophole for forum shoppers? by Julian Hawkhead

Divorce|International | 3 Jul 2020 0

The case of Villiers v Villiers: The long-awaited Supreme Court judgment in Villiers v Villiers [2020] UKSC 30 was handed down this week. 

This case addresses the circumstance in which divorce proceedings have been commenced within one jurisdiction by one party but where it is possible for the other party to make a claim for maintenance in another. 

The Villiers case involved a couple who last resided as a married couple in Scotland but where the wife had subsequently moved back to England which was her country of origin. 

Even though the husband had filed his divorce application and a financial application in Scotland, there had been a delay in serving the wife who had then filed her claim for maintenance in England.  

England has a notoriously generous maintenance regime where high quantum; long-term maintenance is available. By stark contrast, in Scotland, the term is limited to a handful of years at best. 

The husband challenged the English court’s right to determine the issues of maintenance but was unsuccessful in the Supreme Court.

EU Maintenance Regulations

The “loophole” that the wife successfully found is linked to the EU Maintenance Regulations as embodied in domestic law as part of the jurisdictional interplay with Scotland. The same situation would apply to Northern Ireland as well. 

On a broader scale, pending the full determination of the Brexit arrangements, it would also apply in cross-border disputes with EU countries as well. 

This makes it possible for financial claims limited to maintenance to be brought in England /Wales even though the divorce and other financial issues are being addressed in another jurisdiction. 

Although the financial claims in England are limited to maintenance only, it being correctly conceded that the other financial issues were to be dealt with alongside the divorce in Scotland, maintenance under the EU Maintenance Regulations is open to a wide interpretation. 

Post-Brexit

Post-Brexit, we have yet to see what the ultimate future of the EU Maintenance Regulations will be to see if this judgement will have a more regular application or whether this somewhat complex set of regulations will fall away following 31 December 2020. 

Get in touch 

If you have any questions on the issues raised in the case of Villiers v Villiers regarding cross-jurisdictional / international family issues please contact Julian or another member of the team and they will be happy to help. 

Julian is Stowe Family Law’s Senior Partner and is based in our Leeds office.

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