V, Re (Rev 1)

Where maintenance proceedings are brought in England and Wales under Matrimonial Causes Act 1973, jurisdiction under the European Maintenance Regulation depends on the statutory connecting factors, including the creditor’s habitual residence. A divorce action in another part of the United Kingdom does not seise that court of maintenance merely because financial claims must be made before divorce can be finalised. A specific maintenance or financial provision claim is required. The court first seised of maintenance has priority, and where the competing court is in a part of the United Kingdom treated as a separate jurisdiction, the Regulation governs the question of a stay. The court may award interim maintenance where the respondent can access substantial trust or inheritance resources.

The parties had lived in Scotland throughout most of their marriage. After separation, W moved to England and Wales and issued divorce proceedings there, which were later dismissed by consent. H subsequently lodged a divorce writ in Scotland seeking divorce and expenses, but made no claim for aliment or other financial provision. W then issued proceedings in England under section 27 of the Matrimonial Causes Act 1973, seeking maintenance and interim relief.

H argued that the Scottish writ was first in time because Scottish divorce could not be completed while financial issues remained unresolved. He sought a stay or dismissal of W’s application. The central issues were whether W was habitually resident in England and Wales, whether the Scottish court was already seised of maintenance, and whether interim maintenance and legal funding should be ordered.

1. Jurisdiction. W’s habitual residence in England and Wales at the date of issuing her section 27 application was sufficient to establish jurisdiction under Article 3 of the European Maintenance Regulation. The court accepted that habitual residence ordinarily involves permanence or stability, the centre of interests and, ordinarily, a single habitual residence. W had established the requisite connection without the need for oral evidence.
2. First seised. Under Article 9, a court is seised when the document instituting proceedings or an equivalent document is lodged, subject to the required steps for service. Under Article 12, the court other than the court first seised must stay and, where appropriate, decline jurisdiction in proceedings concerning the same cause of action. Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 treats England and Scotland as separate parts of the United Kingdom for these purposes.
3. The Scottish divorce writ sought only divorce and expenses. The invitation in the service documents to make a financial claim did not itself create such a claim. A separate claim for maintenance or financial provision had to be made in the writ or in a separate claim governed by it. The fact that Scottish divorce could not be granted while a financial claim remained unresolved did not mean that the divorce writ inherently included a maintenance claim.
4. The Maintenance Regulation, rather than general forum conveniens principles, governed the stay issue where the competing proceedings were within its scope. The English court therefore had priority and H’s applications for a stay or dismissal were refused.
5. Interim maintenance of £2,500 per month was ordered from 15 January 2015. H was expected to seek access to substantial trust and inheritance resources. W was also awarded £3,000 per month for legal funding pending the next hearing, together with costs assessed at £19,636.10. Further disclosure and questionnaire responses were ordered.