This post provides an update to Polly Morgan’s ‘State of the Union’ post, which outlined the Villiers’ case when it was first heard. We suggest you read that original post first, because the facts and the legal concepts are explained more fully there. This is a very confusing case (that cannot be summarised in a few sentences) and this post may not make much sense without that.
Update 1 July 2020
Today, we have judgment in the Villiers case, or rather judgments plural – because there are three. They are a romp through EU case law and regulations and approaches to statutory interpretation. You can find the judgment here.
The majority (Lord Sales, Lord Kerr and Lady Black) have dismissed Mr Villiers’ appeal, holding that the English courts did have jurisdiction to decide Mrs Villiers’ s27 maintenance claim, and in fact had to deal with her claim and not decline to hear it.
They held that an English court could not stay (pause) Mrs Villiers claim even if it thought that another country (here, Scotland) was better placed to hear the case. The legal principle that would normally enable a court to do that – known as forum non conveniens – did not apply because the Maintenance Regulation replaced it and said differently.
Under the Regulation’s Article 13, it was possible to stay proceedings where a ‘related action’ was already being dealt with in another state. However, the Supreme Court held that the Scottish divorce proceedings were not a ‘related action’. The right to apply under s27 does not depend on the existence of divorce proceedings, but is freestanding. In this, the Supreme Court overruled a previous High Court case (N v N (Stay of Maintenance Proceedings)  EWHC 4282 (Fam)) which held that they were related. (Lady Black discusses what would be a related claim at paragraph 80 of her concurring judgment.)
On the issue of whether the regulations were ultra vires (unlawfully made), the majority held that they were not.
The majority of the Supreme Court judges held that this interpretation fulfilled the purpose of the Regulation, which was designed to give claimants for maintenance a choice of jurisdiction so that they could claim in the country that was best for them:
‘She has an unfettered choice in that regard, and is entitled to choose to bring her claim in an English court on grounds of its convenience for her or because she believes that the law it will apply is more advantageous for her. It is a fundamental object of the Maintenance Regulation to confer that right on a maintenance creditor’.
Mrs Villiers could therefore choose in which country to bring her claim as long as she had a sufficient connection to the chosen country. She could claim in England because she had sufficient connection to England because she lives in England. It did not matter whether her reasons for choosing England were tactical or practical.
This means that there may be fragmented sets of proceedings to resolve parties’ financial affairs on divorce, with some being dealt with in one country and some in another. This was ‘not very palatable’, as Lady Black said (although, noting that this kind of legal fragmentation is not without precedent, she ultimately agreed with Lord Sales and Lord Kerr, forming the majority).
Lord Wilson and Lady Hale (two very experienced family lawyers) would have classed the Scottish divorce and the English s27 application as related actions, so that the English court, being second to get involved, could decide to stay or decline to hear the s27 claim. They thought that would be a more common sense approach. Lord Wilson said:
‘There will be two adverse consequences of today’s decision, one expressly noticed only by Lord Sales, and the other only by Lady Black. The first will be the untrammelled licence given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of her case. …
The second will be the inability of a court in one part of the UK to decline to determine a wife’s maintenance claim even when a court in another part alone has power to determine a claim by one spouse or the other for transfer of property or for some other adjustment (such as would, for example, disentangle them from joint ownership of property) or for a pension sharing order.’
To Mr and Mrs Villiers, this was a dispute about splitting their money. To lawyers, was about the interpretation of a Regulation, with the majority taking a purposive approach even at the risk of practical problems where two courts deal separately with the matrimonial assets in two different ways.
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