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Scotland v England: Maintenance and more to come

Scotland v England: Maintenance and more to come

We continue our series of blogs on this noteworthy, important (and legally complex!) topic. I have already provided a summary of where we were at back in May. (That blog followed a decision of the Court of Appeal in England.)

To recap – the case concerns Charles Villiers, a Racehorse owner and relative of the Duchess of Cornwall. What the case means has been covered already in my May blog.

So what’s new?

It was recently reported that Mr Villiers has filed an application to appeal the decision to the Supreme Court.

He has been quoted as saying: “The case is undoubtedly going to result in a surge of divorcees swiftly relocating south of the border in a bid to cash in. It’s going to cause an absolute shambles…….This is clearly ludicrous. It has given rise to the situation that whereas my divorce can only happen in Scotland my wife can make a standalone application for ‘maintenance’ in England. It is now, potentially, an irreconcilable situation.”

Why is this important?

Broadly speaking in England the Courts can order lifetime maintenance, whereas in Scotland maintenance is generally limited to a maximum period of 3 years after divorce.

As Mr Villiers’ barristers have said: “The way in which the courts have interpreted the UK maintenance regulations might well be said to encourage forum shopping…..Even if the divorce is issued first in Scotland, and even if the English court cannot deal with the divorce, the other spouse could still apply to the English courts for maintenance….One of the issues in the Villiers case is whether the law is meant to allow this splitting of the divorce and the finances.”

Practical Application

As it stands the law encourages a rush to Court and potentially 2 sets of Court proceedings North and South of the Border. That brings with it increased legal fees and arguably unnecessary acrimony.

The future

It remains to be seen if the Supreme Court consider the case and apply the relevant EU regulations differently, but until then the ability to forum shop remains an option for many. We are keeping a watchful eye on developments….

 

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