The different approaches adopted by judges north and south of the border to the thorny issue of how much maintenance a spouse (usually but not exclusively the wife) should be paid post divorce has been discussed previously in my colleagues’ blogs, Scotland v England: Maintenance and more to come and Making a Maintenance Claim – Scotland v England. The Villiers saga continues as Mr Villiers has now been granted the right to appeal to the Supreme Court following the decision of the English Court of Appeal.
Mr Villiers’ case throws into sharp relief the problems which arise as a consequence of what is known as “forum shopping”. This stems from the difficulty with our legislation which allows parties to select the Court in the country which is more likely to provide them with a favourable settlement in certain circumstances. So for example, in the case of a Scottish husband and an English wife who live in Scotland for much of their married life as Mr and Mrs Villiers did, and following separation the wife returns south of the border, where should they divorce? Scotland is the obvious answer since the husband is still “habitually resident” here. That is precisely what Mr Villiers did since during their long marriage he and his wife had lived in Scotland –and most of their property remained here. But Mrs Villiers responded with an action for maintenance for herself in England .She could do this because she was by then habitually resident in England and Mr Villiers’ divorce action did not contain any application for maintenance . Accordingly Mrs Villiers was free to raise an action in England for maintenance and the Court made a generous maintenance award in her favour.
Despite the closeness of our countries geographically, Scotland and England adopt very different approaches to the issue of maintenance after divorce. In Scotland, divorce legislation encourages a clean break and courts rarely make awards of maintenance for more than three years unless the divorce itself causes serious financial hardship. Conversely in England lifetime maintenance is not unusual.
The regulations governing maintenance, or the interpretation of them, allow for the possibility of Court actions running in parallel in two separate jurisdictions and couples have to endure the resultant uncertainty and expense.
And so we await the outcome of the Supreme Court decision of Villiers with interest. It is of the utmost importance that, particularly in cases where there are jurisdictional issues for couples, expert family law advice is taken as quickly as possible so that appropriate protections can be put in place. Contact our family law team.