Maintenance Claims across UK Borders – The Elephant in the Room
In Villiers v Villiers [2020] UKSC 30 (on appeal from [2018] EWCA Civ 1120 ) the Supreme Court had to decide today about the “Brexit” elephant in the room, when apparently for the first time in 200 years a government has intervened in a financial family law case.
Sir James Eadie QC appeared at the hearing in December 2019 for the government and made submission in respect of the regulations (or part of them) that deals with maintenance claims intra-UK were ultra vires and beyond the scope of the powers granted to make secondary legislation in terms of the European Communities Act 1972.
This judgement was handed down while Covid is still with us and on the day that Germany started their turn in the role of the EU’s rotating six-month presidency. Germany and France will also try this summer to get all EU members (including the frugal four) behind a common recovery fund to help European economies hardest hit by Covid-19.
The open question is: Will England stay the divorce capital of the world during the transition period, and if so for how long?
BACKGROUND TO THE APPEAL
This appeal brought by the husband concerns the jurisdiction of an English court to make a maintenance order in favour of the wife under section 27 of the Matrimonial Causes Act 1973 (as amended) (“section 27”) when the parties had mostly lived in Scotland and the divorce proceedings were conducted there.
The parties married in England in 1994 and lived together in Scotland between 1995 and 2012, when they separated and the wife returned to England. She issued a divorce petition in England in July 2013 and the husband issued a writ for divorce in Scotland in October 2014. As the parties had last lived together in Scotland, the application for divorce was assigned to the Scottish court. On 13 January 2015 the wife consented to an order dismissing her petition in England and she issued an application under section 27 in England for maintenance payments. The husband applied to stay or dismiss this application on the basis that the English court did not have or should not exercise jurisdiction to hear the application. The English High Court rejected the husband’s challenge and ordered maintenance to be paid by the husband. The husband unsuccessfully appealed against the decision to the Court of Appeal. The husband now appeals to this Court in relation to the jurisdictional issues. The issues relate to Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (“the Maintenance Regulation”) and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (“Schedule 6” and “the 2011 Regulations”, respectively), promulgated by the Secretary of State for Justice pursuant to section 2(2) of the European Communities Act 1972 (“the ECA 1972”).
SUPREME COURT DISMISSED HUSBAND’S APPEAL
By a majority, the Supreme Court dismissed the appeal. Lord Sales gave the lead judgment, with which Lord Kerr agrees. Lady Black gave a concurring judgment. Lord Wilson gave a dissenting judgment, with which Lady Hale agreed.
REASONS FOR THE JUDGMENT
In the lead judgment, Lord Sales sets out the four issues that arise on the appeal:
(1) whether under section 27 an English court has jurisdiction to make any order for maintenance in a case with no international dimension;
(2) if so, whether Schedule 6 allows for an English court to retain its previous discretion to stay maintenance proceedings before it on the ground of forum non conveniens (i.e. the court’s discretion to make an assessment as to which jurisdiction is the most appropriate);
(3) if not, whether the purported removal of that discretion was outside the scope of the Secretary of State’s powers in section 2(2) of the ECA 1972; and
(4) if not, whether the husband’s divorce proceeding in Scotland is a “related action” for the purposes of article 13 of the Maintenance Regulation and the corresponding provision Schedule 6 and, accordingly, whether the English court should decline jurisdiction in respect of the wife’s claim for a maintenance order under section 27 [see para 7].
Lord Sales considers that the European Union (“EU”) legislation governing jurisdiction in cross-border cases treats maintenance obligations and questions of marital status, including divorce, as separate matters for the purposes of jurisdiction (see paras [8]-[24]).
Maintenance obligations are covered by their own inter-state jurisdiction regime set out in the Maintenance Regulation [see para 17].
Schedule 6 applies the provisions of the Maintenance Regulation to the allocation of jurisdiction for intra-state cases within the United Kingdom relating to maintenance (see paras [22]-[23]).
What is covered by s27 of the Matrimonial Causes Act 1973 (as amended)
On the first issue, the husband submits that section 27 can only apply if a case falls to be governed by both the Maintenance Regulation and by Schedule 6, which would have the effect of it only applying in inter-state cases. Lord Sales considers (and Lord Wilson agrees) that section 27 does not require that both the Maintenance Regulation and Schedule 6 apply.
Section 27 refers to both the Maintenance Regulation and Schedule 6 only in the sense that together they cover the whole possible field of interstate cases and intra-state cases (see paras [26], [135]-[140]).
Should the Supreme Court follow EU case law that EU Member States retaining any “discretionary power” ?
On the second issue, Lord Sales follows EU case law to hold that the scheme of the EU legislation is inconsistent with the courts of a Member State retaining any discretionary power to stay proceedings on forum non conveniens grounds [see para 28[1]]. This is particularly applicable to the Maintenance Regulation, which aims to afford special protection to a maintenance creditor by giving him or her the right to choose jurisdiction [see para 29][2]. Schedule 6 replicates the scheme of the Maintenance Regulation in domestic law for intra-state cases, and accordingly has the effect of removing any discretion based on the domestic forum non conveniens doctrine [see para 34]. [3]
What is the Court’s power within s2(2) of the ECA 1972?
On the third issue, Lord Sales considers (and Lord Wilson agrees) that the making of the 2011 Regulations is within the wide power conferred on the Secretary of State by section 2(2) of the ECA 1972 to make subordinate legislation (see para [38], [141]-[145]).
What is a “related action”?
On the fourth issue, in Lord Sales’ judgment the husband’s divorce proceeding in Scotland is not a “related action” within article 13 of the Maintenance Regulation, so that article (and the corresponding provision in Schedule 6) does not permit the English court to decline jurisdiction [see para 40]. The Maintenance Regulation must be considered in light of its fundamental object of conferring the right to choose jurisdiction on a maintenance creditor [see para 41]. The word “actions” in article 13 refers primarily to maintenance claims to which the special regime in the Regulation applies. Holding it to mean any legal proceedings would undermine the object of the Regulation [see para 45]. There is no relevant connection between the wife’s section 27 maintenance claim in England and the Scottish proceedings concerned with determining marriage status [see para 46].
In her concurring judgment [see para [58] – [92] , Lady Black agrees with Lord Sales’ conclusion on article 13, despite the fact that it leads to the potential fragmentation of the proceedings required to resolve financial affairs upon divorce. Based on the wording of article 13, with the object of protecting the maintenance creditor in mind, she considers that the English and the Scottish proceedings are not related actions [see para 91 ].
Lord Wilson’s dissenting judgment
In his dissenting judgment [see para 93 – 180], Lord Wilson views the English and Scottish proceedings as “related actions” for the purpose of article 13, giving the English court the power to stay or decline the wife’s maintenance application. He would adopt a broad, common sense approach to the interpretation of the article [see para 162]. As a result, Lord Wilson would have allowed the husband’s appeal [see para 163].
England continue to be the financial capital of divorce, but for how long. As Abraham Lincoln said, “when you have got an elephant by the hind legs and he is trying to run away, it’s best to let him run”.
For full judgement / video link see:
- Full judgment: https://www.supremecourt.uk/cases/docs/uksc-2018-0114-judgment.pdf
- Video summary by Lord Sale: https://www.supremecourt.uk/watch/uksc-2018-0114/judgment.html
References:
[1] Owusu v Jackson (Case C-281/02) [2005] QB 801
[2] See: R v P (Case C-468/18) ECLI:EU:C:2019:666; [2020] 4 WLR 8
[3] See: Sanders v Verhaegan; Huber v Huber (Joined Cases C-400/13 and C408/13) EU:C:2014: 2461; [2015] 2 FLR 1229
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