Supreme Court hears eagerly-awaited cross-border divorce dispute

Family lawyers north and south of Hadrian’s Wall are eagerly awaiting the decision of the Supreme Court following a hearing last week that could have…

Family lawyers north and south of Hadrian’s Wall are eagerly awaiting the decision of the Supreme Court following a hearing last week that could have significant consequences for cross-border divorces.

The hearing is an appeal from a decision of the courts of England and Wales that Mr Villiers has to pay £5,500pcm to Mrs Villiers until the determination of their financial proceedings – despite the fact that the divorce proceedings are taking place in Scotland.

Mr Villiers was granted permission to appeal this decision to the Supreme Court, arguing that the courts of England and Wales do not have jurisdiction in relation to financial matters, as these should be reserved to Scotland. Mrs Villiers, who now lives in England, opposes this.

The judgment, when it arrives, will clarify the correct interpretation of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011. This created a new regime for maintenance cases, amending domestic law in a manner that incorporated not just cases involving non-UK countries, but also for intra-UK cases such as between England and Scotland.

Mr Villiers’ legal team has argued that, following the implementation of the 2011 Regulations, the courts retained the power to stay proceedings in favour of those in another part of the UK on forum non conveniens ground. In the alternative, the court has been asked to declare the relevant part of the 2011 Regulations as being ultra vires.

Many commentators have expressed concern that if Mrs Villiers is successful and she is permitted to continue her financial claims in England, it will further encourage divorce tourism on the basis that payment of spousal maintenance in Scotland is generally limited to three years, while in England there is no time limit.

This case is particularly significant in light of the UK’s impending exit from the European Union and the impact that will have on the many families experiencing relationship breakdown who have ties with more than one country. Recognising this, the government has intervened in the hearing. It is thought to be the first time in 200 years that this has happened in a family finance case.

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