Villiers v Villiers – free to forum shop?

Last week the Supreme Court returned their decision, awaited in anticipation on both sides of the border, in the case of Villiers v Villiers. In short, the court had to consider competing claims in Scotland and England, more specifically whether one court in one part of the UK could deal with a divorce action with financial provision claims whilst another in another part of the UK could deal with an action for spousal maintenance. The couple had met and married in England but spent the majority of their life whilst married living in Scotland. There were ongoing proceedings in Scotland raised by Mr Villiers for divorce whilst Mrs Villiers had raised proceedings in England and Wales for maintenance where she was then residing. Mr Villiers appealed on the issue of jurisdiction, whether the divorce proceedings and maintenance proceedings were related actions and essentially on the interpretation and effect of Schedule 6 to the Civil Jurisdiction and Judgements (Maintenance) Regulations 2011 and interpretation and effect of Council Regulations (EC) No4/2009. Mr Villiers further argued that the court should refuse to deal with the maintenance case as England was not the appropriate forum in which to do so.

The court returned a majority decision with a 3/2 split deciding that the EU maintenance regulations did apply intra-UK and as such could be heard in more than one part of the United Kingdom. As the actions were deemed not to be related actions within these regulations, the English courts cannot stay the proceedings in favour of the Scottish courts. The decision is important as it effectively allows parties who are subject to divorce proceedings in Scotland, but who wish to make a claim for spousal maintenance to raise a separate action in England on the grounds of convenience or because the party believes that the law which will be applied is more advantageous to them (provided of course that there are grounds to raise the action in England in the first place)

It is an extremely important decision as it is widely known and accepted (and stated by one of the dissenting judges in the decision) that the English courts are more generous than those in Scotland when providing financial awards to a spouse following separation and divorce.

The implications of this decision from the Supreme Court are likely to be far reaching. It is likely there will be increased forum shopping and that there will added complexity and confusion across cases and in providing advice to clients. The decision means that practitioners and couples alike need to carefully consider matters (now more than ever!) in terms of jurisdiction, where couples are now residing and their cross border connections. Another complication is the end of the Brexit transition period, where further issues are likely to arise in respect of all of these issues as the rules are likely to change again. It’s also clear that it is likely that there will be more cases involving litigation in both Scotland and England and Wales.

These are matters which require expert advice and should you have any concerns regarding cross border matters or the implications for your situation following the decision in Villiers v Villiers please do not hesitate to contact one of our team to discuss further: / 0141 375 1222