Table of Contents
- Family Law and Cross-Border Divorce Proceedings in Villiers v Villiers
- Why Jurisdiction Matters in Family Law Disputes
- Cross-Border Divorce Proceedings and the Impact of Brexit
- Cross-Border Divorce Claims with Jones Whyte Family Law Team
Family Law and Cross-Border Divorce Proceedings in Villiers v Villiers
The Supreme Court returned their decision, awaited in anticipation on both sides of the border, in the case of Villiers v Villiers. 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 divorce proceedings whilst another could deal with a separate action for spousal maintenance.
The couple had met and married in England but spent most of their married life in Scotland. Mr Villiers raised a divorce action in a Scottish court, whilst Mrs Villiers raised proceedings for maintenance in England where she was then residing. Mr Villiers appealed on the issue of jurisdiction, arguing that the actions were related and that England was not the appropriate forum.
The court returned a majority decision with a 3/2 split, deciding that the EU maintenance regulations did apply intra-UK and that the actions were not related actions within those regulations. As a result, the English courts cannot stay the proceedings in favour of the Scottish courts. The decision effectively allows a party subject to divorce proceedings in Scotland to raise a separate maintenance action in England, provided grounds exist to do so.
It is an extremely important decision as it is widely accepted that the English courts are more generous than those in Scotland when providing financial awards to a spouse following separation and divorce, with wider implications for family law disputes.
Why Jurisdiction Matters in Family Law Disputes
The reason the jurisdictional question in Villiers mattered so much comes down to fundamental differences in how Scotland and England approach financial provision on divorce, an issue central to many family law matters.
In Scotland, the Family Law (Scotland) Act 1985 governs financial provision. Assets accumulated during the marriage are shared fairly, with equal sharing as the default. Pre-marital and inherited assets are generally excluded. The Scottish approach strongly favours a clean break, with maintenance orders limited in most cases to a maximum of three years, particularly in both ordinary divorce and simplified divorce cases.
English courts operate under section 25 of the Matrimonial Causes Act 1973 and exercise a much broader discretion. The pool of assets considered is wider, and maintenance can be ordered for any term.
In cases involving significant assets, the financial outcome can differ substantially depending on which legal system applies. The forum question is therefore not merely procedural, it directly determines the financial outcome when a marriage breaks down due to irretrievable breakdown, unreasonable behaviour, or where one party has committed adultery.
Cross-Border Divorce Proceedings and the Impact of Brexit
The July 2020 judgment settled the jurisdictional question but not the substantive one. The case returned to the Family Court in England to determine whether Mrs Villiers was actually entitled to maintenance.
In March 2021, Mr Justice Mostyn dismissed her application entirely. Mrs Villiers appealed and in June 2022 the Court of Appeal reversed that decision and made a maintenance order in her favour.
The case stands as a sobering example of the complexity of cross-border disputes and the importance of early legal advice from a divorce lawyer Scotland or other family law solicitors experienced in complex divorce proceedings. Without clear guidance, cases can escalate into lengthy court action involving multiple hearings.
Cross-Border Divorce Claims with Jones Whyte Family Law Team
At Jones Whyte, our experienced family law team and specialist divorce lawyers regularly advise clients on complex cross-border disputes involving Scotland and England. Whether your case involves civil partnership, same sex marriage, or traditional marriage, we provide clear, practical guidance tailored to your circumstances.
Our family lawyers understand that every case is different and focus on delivering practical solutions that minimise stress and avoid unnecessary court action where possible. We can assist with all aspects of the divorce process, including simplified procedure, ordinary divorce, and financial claims involving matrimonial assets.
We also advise on related issues such as legal separation, urgent applications for a court order, and complex situations involving an interim gender recognition certificate. Our goal is to remove unnecessary legal jargon and provide straightforward legal advice you can rely on.
Jones Whyte Is Here To Help
If you require advice from an experienced divorce lawyer, our team is here to help. We provide clear legal advice, tailored to your situation, and focus on delivering practical solutions at every stage of your case.
To speak to a member of our family law team, call us on 0141 674 4357 or use our contact details online to get in touch.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
