Villiers v Villiers

A maintenance creditor may bring a claim in any jurisdiction made available by article 3 of the Maintenance Regulation, as adapted for intra-UK cases by Schedule 6 to the 2011 Regulations. That choice is mandatory and cannot be displaced through forum non conveniens.

For article 13, proceedings are related only where they are closely connected and separate determination creates a real risk of irreconcilable judgments. Divorce proceedings concerning marital status are not, without more, related to a separate maintenance claim. Schedule 6 is a comprehensive intra-UK jurisdictional code, but it does not remove ordinary case-management powers.

The wife lived in England after the parties separated, while the husband remained in Scotland. The husband began Scottish divorce proceedings seeking no financial relief. The wife discontinued her English divorce petition and applied in England for maintenance under section 27 of the Matrimonial Causes Act 1973.

Parker J held that the English court had jurisdiction and ordered interim periodical payments: [2016] EWHC 668 (Fam). The Court of Appeal dismissed the husband’s appeal: [2018] EWCA Civ 1120. The Supreme Court considered whether section 27 remained available in domestic cases, whether forum non conveniens survived Schedule 6, whether Schedule 6 was ultra vires, and whether the Scottish divorce and English maintenance proceedings were related actions under article 13.

1. Appeal dismissed by a majority of three to two. Lord Sales, with whom Lord Kerr agreed, and Lady Black held that the English court had jurisdiction over the wife’s maintenance application. Lady Hale and Lord Wilson dissented on the application of article 13.

2. Section 27(2) of the Matrimonial Causes Act 1973 covers both inter-state and intra-state cases. The Maintenance Regulation and Schedule 6 together cover the whole field. A construction excluding purely domestic cases would deprive section 27 of most of its practical effect.

3. Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 replicates the Maintenance Regulation’s jurisdictional scheme for disputes between parts of the United Kingdom. Article 3 gives a maintenance creditor a right to choose among its alternative jurisdictions. The scheme is mandatory, predictable and protective of the creditor as the weaker party. It excludes a stay or dismissal on forum non conveniens grounds. Section 49 of the Civil Jurisdiction and Judgments Act 1982 does not preserve that doctrine because maintenance jurisdiction is governed by a separate legislative regime. Ordinary case-management powers, including an appropriate adjournment, remain available.

4. The Secretary of State had power under section 2(2)(b) of the European Communities Act 1972 to enact Schedule 6. Establishing coherent intra-UK rules corresponding to the Maintenance Regulation dealt with matters arising from or related to the Regulation’s operation in domestic law.

5. On the majority’s construction, article 13 principally addresses competing maintenance claims. Any extension beyond them is narrowly confined to cases presenting a direct, real and present risk of irreconcilable judgments. The Scottish divorce concerned marital status alone, while the English proceedings concerned maintenance. An English maintenance award could coexist with a Scottish divorce decree. The proceedings were therefore not related actions.

6. Dissenting, Lord Wilson, with whom Lady Hale agreed, considered that article 13 required a broad, common-sense construction. Because the Scottish court could determine maintenance within the divorce proceedings, he would have held that the English court possessed a discretion to stay or decline jurisdiction and would have remitted the exercise of that discretion to the Family Division.

1. United Kingdom Supreme Court: By a majority, dismissed the husband’s appeal and upheld the conclusion that the English maintenance proceedings could continue: [2020] UKSC 30.
2. Court of Appeal: Dismissed the husband’s appeal from Parker J: [2018] EWCA Civ 1120; [2019] Fam 138.
3. High Court, Family Division: Parker J rejected the jurisdictional challenge and made interim maintenance orders: [2016] EWHC 668 (Fam); [2017] 1 FLR 1083.