Villiers v Villiers: the Supreme Court decision
Today the Supreme Court handed down judgment in the case of Villiers v Villiers. Dawson Cornwell acted for the appellant Mr Charles Villiers and instructed Michael Horton and Alexander Laing of Coram Chambers. By a bare majority, three justices to two (Lord Sales, Lord Kerr and Lady Black JJSC, with Lord Wilson and Lady Hale JJSC dissenting), the Supreme Court dismissed Mr Villiers’ appeal. The Supreme Court heard argument on 9 and 10 December 2019. The appeal concerned whether the English family court had any power to stay Mrs Villiers’ application for maintenance under s 27 of the Matrimonial Causes Act 1973 given the couple were getting divorced in Scotland. Commenting on the work done by Michael Horton and Alexander Laing on behalf of Mr Villiers, Lord Wilson said ‘The amount of work which they have done for him is phenomenal; and its high quality will become evident as this judgment proceeds.’
What the case was about
Mr and Mrs Villiers spent nearly all their married life in Scotland. When they separated, Mrs Villiers moved south to England, while Mr Villiers remained living in Scotland. Mrs Villiers sought to divorce Mr Villiers in England, and Mr Villiers issued a divorce writ in Scotland. The laws of Scotland and of England & Wales have complementary rules which determine which of two competing divorce cases should proceed. Under those rules, Mrs Villiers was obliged to accept that her English divorce must be dismissed and that they would get divorced in Scotland. Mr Villiers did not apply for any maintenance or financial orders from Mrs Villiers in his Scottish divorce writ. It is not possible in Scotland for persons to ask the court to make orders (or decide not to make orders) against themselves. However, even though Mrs Villiers accepted that the divorce would take place in Scotland, in January 2015 she applied to the family court in England for a maintenance order. She did so under s 27 of the Matrimonial Causes Act 1973, which allows the family court to make a maintenance order if one spouse has failed to provide reasonable maintenance to the other, and which can be used even if there are no divorce proceedings in England and Wales. Mrs Villiers could have applied for maintenance and other financial orders within the Scottish divorce proceedings. She chose not to and applied to the English court for maintenance. The United Kingdom is one country but contains three different legal systems – one in Scotland, one in Northern Ireland, and another in England and Wales. In general, a court in England will award maintenance of a higher amount and for a longer duration than a court in Scotland. So by choosing to sue for maintenance in England rather than Scotland, Mrs Villiers would be ‘forum shopping’ – making a tactical choice to sue in a court which would, she hoped, give her a better outcome.
The legal issues in the appeal
Should someone in the position of Mrs Villiers be allowed to do this? This was the question that was raised by Mr Villiers’ appeal to the Court of Appeal and further appeal to the Supreme Court. The case on behalf of Mr Villiers was that:
- if a couple is divorcing in one part of the UK, it would normally be wrong for maintenance and finance issues between them to be decided in a different part of the UK;
- if one party wishes to seek maintenance from a court in one part of the UK whilst the divorce is taking place in another part of the UK, the court dealing with the maintenance application should be able to suspend or stay its proceedings on the basis that it would be more appropriate for the other court, dealing with the divorce, also to deal with the maintenance.
Mr Villiers’ legal team pointed out that:
- a court dealing with maintenance undoubtedly used to have the power to suspend or stay its proceedings on the basis that it was the less appropriate forum in favour of another part of the UK;
- whilst the EU Maintenance Regulation, which came into force in 2011, prevented a court dealing with maintenance from deciding not to deal with the case on the ground that it was the less appropriate forum in comparison with a court in another EU country, EU law did not require the UK to take the same approach to jurisdiction disputes within the UK;
- in civil proceedings, in divorce proceedings, and in proceedings between parents about the arrangements for their children, the family court in England and Wales could decide not to deal with the case on the basis that it was the less appropriate forum, and the issue could be decided better in a court in another part of the UK;
- if the court did not have this ability in maintenance cases, this would therefore be anomalous;
- the absence of this power to stay on the grounds of less appropriate forum might encourage forum shopping in favour of the courts of England and Wales.
The legal rules for deciding whether a maintenance case should be heard in England and Wales, or in Scotland, or in Northern Ireland, are contained in the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (‘the 2011 Regulations’). The 2011 Regulations were made by the UK government to implement the EU Maintenance Regulation which came into force in June 2011. The EU Maintenance Regulation deals with international maintenance disputes, typically where one party says that maintenance should be dealt with in one EU country and the other party says that a different EU country should decide on maintenance issues. At the heart of the appeal was the meaning of and intention behind the 2011 Regulations.
The arguments on appeal
Before the Supreme Court, Mr Villiers’ lawyers argued:
- the 2011 Regulations had not removed the power of the court to decide not to deal with a maintenance case on the grounds that it was a less appropriate forum and that the case would better be dealt with by a court in another part of the UK;
- if they did remove this power, the 2011 Regulations were not lawfully made under the European Communities Act 1972 and the government acted outside its powers in making the 2011 Regulations;
- the 2011 Regulations had amended s 27 of the Matrimonial Causes Act 1973 so that the English family court had no ability under this section to make maintenance orders in a purely domestic case, ie where both parties lived within the UK;
- even if the family court did not have the power to stay its proceedings on the basis that it was the less appropriate forum, it could decide not to deal with the case on the basis that the English maintenance case and the Scottish divorce case were ‘related actions’, as the EU Maintenance Regulation and the 2011 Regulations allow a court to stay proceedings where there are related actions.
All five Supreme Court Justices agreed that:
- the 2011 Regulations had been lawfully made. If they removed the power to stay maintenance proceedings on the grounds that the court was the less appropriate forum, the government had been within its powers to use the regulation making power under the European Communities Act 1972;
- the family court in England and Wales did have the power to make a maintenance order under s 27 even where all the parties lived within the UK –it was not confined to international cases;
- the EU Maintenance Regulation did not dictate which part of the UK could decide maintenance cases.
The majority decision
- the 2011 Regulations dealing with maintenance disputes within the UK mirrored the scheme under the EU Maintenance Regulation for deciding which court had jurisdiction to decide the case;
- when deciding what the 2011 Regulations meant, the courts should follow the interpretation of the corresponding terms in the EU Maintenance Regulation;
- where more than one EU country had the ability to hear the case, the Maintenance Regulation gave priority to the court where the case had been issued first, and also allowed the court which came second to stay proceedings on the basis that there were related proceedings in another EU country;
- therefore where there was more than one part of the UK with the ability to hear the case (as in the Villiers case where Mrs Villiers lived in England and Mr Villiers in Scotland), the first in time rule applied – if the person applied first in England, even by a day, the case had to go ahead in England;
- the English maintenance claim and the Scottish divorce writ were not ‘related actions’ within the meaning of the EU Maintenance Regulation or the 2011 Regulations, even though Mrs Villiers could have applied for maintenance within the Scottish divorce proceedings;
- the decision to include within the 2011 Regulations the ‘first in time’ rule and the related actions provision meant that there was no longer any power to stay maintenance proceedings on the ground that the court was a less appropriate forum than a court in another part of the UK. These rules were incompatible with the continued existence of the power to stay on the less appropriate forum grounds;
- the English court therefore had no power to decide not to go ahead with its proceedings and allow maintenance issues to be decided within the Scottish divorce;
- the case would now go back to the High Court for a judge to decide how much maintenance Mr Villiers should pay and for how long.
Lord Wilson and Lady Hale JJSC were the two Justices in the minority. Both are highly experienced family law judges. In their view:
- the majority had been wrong in seeking to restrict the concept of related actions so that the claims must both concern maintenance to be related, or that there must be a direct real and present risk that the two claims would give rise to conflicting judgments;
- indeed, the notion that the core object of the related actions provision was to deal with the situation where each spouse might seek to claim that the other owes maintenance was preposterous – such a situation was entirely unrealistic;
- even under EU law, the concept of ‘related actions’ was a broad one;
- it was still open for Mrs Villiers to apply for maintenance and other financial orders within the Scottish divorce writ, as the divorce had not yet been granted;
- the English maintenance case and the Scottish divorce writ were related actions, and the English court therefore could decide not to continue with the English maintenance case. The case should go back to the High Court for a judge to decide whether the proceedings should be stayed as related actions, or carry on in England;
- because the related actions rule allowed a court to stay maintenance proceedings in these circumstances, there was no scope for the continued existence of the power to stay proceedings on the less appropriate forum ground;
- however, if they were wrong about the wide scope of the related actions power, they would have held that the less appropriate forum power to stay proceedings was not incompatible with the 2011 Regulations and had survived their introduction.
Lord Wilson also set out a number of questions at the end of his judgment which indicate that he is troubled by the decision of the majority. Lady Black referred to the prospect of divorce in one part of the UK and maintenance proceedings in another as ‘unpalatable’. Lord Wilson went further. He said that the majority decision would result in an ‘untrammelled licence [being] given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of the case’. It also opened up the prospect of a court in one part of the UK dealing with ‘maintenance’ matters, but a court in another part of the UK dealing with other aspects of the finances on divorce, such as disentanglement of joint ownership of property.
To get access to the higher and longer awards of maintenance from the English court, the applicant must be habitually resident in England and Wales. There is no requirement to be habitually resident here for any period of time – if a person decides to leave their spouse, sever their ties with Scotland, and arrange to rent a flat in England or stay with relatives, they could conceivably be habitually resident as soon as they step off the sleeper at Euston station in the morning. This makes life even easier for the would-be forum-shopper.
This outcome depends on the 2011 Regulations. As Lord Wilson makes clear, these were made in a hurry by the UK government in seeming ignorance of the court’s ability to resolve jurisdiction disputes by the use of the power to stay proceedings on the less appropriate forum ground. The UK government chose to copy EU law, even though it did not have to, for deciding how to deal with maintenance cases within the UK. As a result of Brexit, the 2011 Regulations were to be repealed on exit day, ie 31 January 2020. They are retained in force during the implementation period – but will currently cease to have effect at 11pm on 31 December 2020 (and the government has set its face against any extension to the implementation period). For proceedings issued in 2021, the clock will go back to 2010 – the court will again have the power to stay maintenance proceedings on the basis that the court is the less appropriate forum. The licence to forum-shop will be curtailed.