Villiers v Villiers

Jurisdiction for an application under section 27 of the Matrimonial Causes Act 1973 is governed exclusively by the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011. Sections 16(3) and 49 of the Civil Jurisdiction and Judgments Act 1982 provide no residual forum non conveniens power.

A pending divorce concerning status only is not a related action merely because a future maintenance claim could be made in that proceeding. Under section 27(5), immediate need means current and continuing need, not necessarily urgency. For interim purposes, trust resources may be considered where an advance is likely; certainty is unnecessary.

The parties had lived in Scotland. The husband commenced Scottish divorce proceedings, but his writ contained no claim for aliment, maintenance or other financial relief. The wife, who lived in England, applied there under section 27 of the Matrimonial Causes Act 1973 for interim maintenance and a legal-fees allowance.

Mrs Justice Parker declined to stay the English proceedings under Article 12 of the Maintenance Regulation and made interim orders. Her decision is reported at [2016] EWHC 668 (Fam). The husband appealed on related actions under Article 13, forum non conveniens, the meaning of immediate need, the treatment of trust resources and the costs allowance.

Appeal dismissed. Lady Justice King gave the judgment, with Lord Justice David Richards and Lord Justice Moylan agreeing.

1. The 2011 Maintenance Regulations deliberately removed intra-UK maintenance disputes from the regime of the Civil Jurisdiction and Judgments Act 1982. The Maintenance Regulation, as applied by Schedule 6, governs jurisdiction exclusively. Sections 16(3) and 49 of the 1982 Act therefore have no residual application, and the court has no separate forum non conveniens discretion. Section 27(2) of the Matrimonial Causes Act 1973 permits the application to be entertained only if jurisdiction exists under that regime.
2. The Scottish divorce proceedings and the English maintenance application were not related actions. The Scottish writ concerned the parties’ status and contained no claim for aliment, maintenance or other financial relief. The possibility of making a future Scottish financial claim did not seise the Scottish court of the maintenance issue. Moore v Moore [2007] EWCA Civ 361 was applied. N v N [2012] EWHC 4282 (Fam) was wrongly decided on this point.
3. Even applying the broad common-sense approach in Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32 and Nomura International plc v Banca Monte Dei Paschi Di Siena SpA [2013] EWHC 3187 (Comm), there was no sufficient connection or risk of irreconcilable judgments. Article 13 was therefore not engaged.
4. For section 27(5), immediate need means current and continuing need rather than necessarily urgent need. Support previously provided by the wife’s brother did not discharge the husband’s own maintenance obligation. The judge was entitled, on the interim evidence, to regard trust funds as resources likely to be made available. The law does not require near certainty that trustees will advance funds.
5. The judge’s procedural shortcomings in making the costs allowance were significant and were not condoned. Nevertheless, on an interim application, she was entitled to take a preliminary, realistic view of the wife’s need and the husband’s likely access to trust resources. Ground 3 was not pursued; the duration of any final order was left for the substantive hearing.

The question whether actions must arise under the same regulation before they can be related was expressly left undecided.

• Court of Appeal (Civil Division): dismissed the appeal and held that the English court retained jurisdiction over the wife’s section 27 application: [2018] EWCA Civ 1120.
• High Court (Family Division): Parker J refused the jurisdictional stay and ordered interim maintenance and a legal-fees allowance: [2016] EWHC 668 (Fam).