Charles Alastair Hyde Villiers v Emma Mary Jane Villiers
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Lord Justice Moylan,Lady Justice King |
| Judgment Date | 17 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1120 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2016/3422 |
| Date | 17 May 2018 |
[2018] EWCA Civ 1120
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
Mrs Justice Parker
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
Lord Justice David Richards
and
Lord Justice Moylan
Case No: B6/2016/3422
Michael Horton and Alexander Laing (instructed by Bar Pro Bono Unit) for the Appellant
Timothy Scott QC (instructed by Penningtons Manches LLP) for the Respondent
Hearing dates: 13 – 14 March 2018
Judgment Approved
This is an appeal against an order made by Mrs Justice Parker on 8 July 2016. The order required the appellant, Charles Villiers (“the husband”), to pay the wife, Emma Villiers (“the wife”), £2,500 per month by way of interim periodical payments until further order and to pay directly to her solicitors, £3,000 per month by way of a legal fees allowance order.
The case concerns the application of Council Regulation (EC) No 4/2009 (“the EU Regulation”) to jurisdictional disputes within the United Kingdom having regard to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (“the 2011 Maintenance Regulations”).
The issue as simply put by the judge (at [1]), was “whether England or Scotland has jurisdiction in respect of maintenance”. In more technical jurisdictional terms the court had to consider whether:
i) In circumstances where divorce proceedings are ongoing in Scotland, but neither party has made a claim for financial provision (whether for capital or maintenance) within those Scottish proceeding, is the wife, as she asserts, entitled to bring proceedings in England under section 27 Matrimonial Causes Act 1973 (s.27 MCA 1973) seeking an order for maintenance for herself on the basis that the husband has failed to provide her with reasonable maintenance.
Or rather, as the husband asserts:
ii) Should the court have declined to exercise its jurisdiction to make an order for maintenance under s.27 MCA 1973 because either:
a) The proceedings in Scotland and England are “related actions” for the purposes of EU Regulation Article 13 as applied by Schedule 6 of the 2011 Maintenance Regulations. That being so, the court should thereafter (as the second seised court) have exercised its discretion under the Regulation to stay or dismiss the MCA 1973 proceedings or
b) Even if the two sets of proceedings are not “related actions”, for the purposes of the Regulation, the court retains a residuary power to stay the English maintenance proceedings on the grounds of forum non conveniens, which power should have been used, Scotland being the first seised and more convenient jurisdiction.
Whenever I refer to an Article of the EU Regulation in this judgment, it is as applied by Schedule 6 to the 2011 Maintenance Regulations. A reference to “Article 13” will therefore mean that that provision, found as it is in the EU Regulation, will apply to the determination of jurisdiction disputes under the 2011 Maintenance Regulations which (subject only to minor textual variations) govern jurisdictional disputes within the UK (“intra UK”).
Background
The parties married in 1994. They moved to Scotland the following year and lived there throughout their married life. Their only child, C (aged 22 years), was born and raised there.
The couple separated in August/September 2012 when the wife and C left the former matrimonial home and moved to England staying initially with her brother before moving in November 2013 to live in rented accommodation in London, where she remains together with C. In July 2013 the wife issued a divorce petition in England on the basis of her habitual residence for 12 months preceding the presentation of the petition.
Later in 2013 the husband was the subject of bankruptcy proceedings in Scotland and he was made bankrupt on 23 January 2014. He was discharged from bankruptcy in November 2014.
On 22 October 2014 the husband (who was unrepresented throughout) filed an acknowledgment of service in response to the wife's petition, contesting jurisdiction. On the same day, he issued a writ of divorce in the Dumbarton Sheriff Court. The writ seeks a grant of decree of divorce on the basis of two years separation and an order for costs. It contains no prayer or “crave” for any financial order. In particular, there was no claim for aliment or periodic allowance (maintenance).
Some days later, on 7 November 2014, DJ Aitken stayed the wife's English divorce petition. That divorce petition was subsequently dismissed by consent on 16 January 2015. It would appear that the wife in doing so accepted that this was the inevitable outcome given that under the Domestic and Matrimonial Proceedings Act 1973 Schedule 1 paragraph 8(1)(c), where there are competing jurisdictions within the UK, the country within the UK where the parties last lived together is the proper jurisdiction for the suit.
On 13 January 2015, as English divorce proceedings were reaching their conclusion, the wife made an application under s27 MCA 1973 relying on her habitual residence to found jurisdiction. By that application, the wife sought interim maintenance for herself to include a costs allowance towards her ongoing legal fees.
The husband's subsequent jurisdictional challenge to the s27 MCA 1973 application was listed to be heard together with the wife's application for interim maintenance before Parker J on 22 and 24 July 2015.
The Scottish and English proceedings:
Much time was spent, both during the trial and subsequent to it, in relation to the status of the evidence the wife had put before the judge as to Scottish law together with the husband's (ultimately unsuccessful) application to file his own expert evidence.
Insofar as it is relevant it seems to be common ground that:
1. In Scotland, divorce is a single process leading to one final decree; there is no equivalent of the English decree nisi prior to a decree absolute.
2. A financial claim needs to be made in the Scottish writ or in a separate claim governed by the writ, in order to engage financial jurisdiction.
3. If such a claim is made then the decree cannot be granted until it is resolved.
4. Where no application is made, the divorce decree may be granted and, unless a financial claim is made prior to the grant of the divorce, the opportunity to make such a claim is lost (subject to minor exceptions which do not apply to the present case).
5. An order for a periodical allowance can be made for a definite or an indefinite period or until the happening of a specified event, but the making of such orders is subject to the principles governing orders for financial provision found in section 9 of the Family Law (Scotland) Act 1985, in particular:
a) Section 9(1)(d) provides that a party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of the decree of divorce, to the loss of that support on divorce; and
b) Section 9(1)(e) provides that a party who at the time of the divorce seems likely to suffer financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.
The wife has not filed an application for financial provision within the active Scottish proceedings (active, although now stayed for in excess of two years upon the application of the wife, whilst this issue is resolved) but rather, she made an application for maintenance for herself only in this jurisdiction under s27 MCA 1973. S27 in so far as is relevant, provides:
Section 27
(1) Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent) —
(a) has failed to provide reasonable maintenance for the applicant, or
(b) has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family.
(2) The court may not entertain an application under this section unless it has jurisdiction to do so by virtue of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011.
(3) ……
(3A) ……
(3B) …..
(5) Where on an application under this section it appears to the court that the applicant or any child of the family to whom the application relates is in immediate need of financial assistance, but it is not yet possible to determine what order, if any, should be made on the application, the court may make an interim order for maintenance, that is to say, an order requiring the respondent to make to the applicant until the determination of the application such periodical payments as the court thinks reasonable.
(6) Where on an application under this section the applicant satisfies the court of any ground mentioned in subsection (1) above, the court may make any one or more of the following orders, that is to say—
(a) an order that the respondent shall make to the applicant such periodical payments, for such term, as may be specified in the order;
…
(c) an order that the respondent shall pay to the applicant such lump sum as may be so specified;”
It can be seen therefore that an order under s27 MCA 1973 is potentially significantly more financially advantageous to the wife than an application under Scottish law given that it provides for the payment of periodical payments “for such term as may be specified in the order”.
The husband's application for a stay of the s27 MCA 1973 proceedings rests upon the proper interpretation of Article 12 and Article 13 of the EU Regulation as applied to...
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Emma Mary Jane Villiers v Charles Alastair Hyde Villiers
...these funds”. 21 The husband's appeal from Parker J's order was dismissed by the Court of Appeal on 17 May 2018: Villiers v Villiers [2019] Fam 138. In the course of her judgment King LJ said: “[107] Mr Scott (counsel for the wife), for his part, drew the court's attention to the evidence w......
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