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Should I divorce in England or Scotland?

Is the "Scottish approach" the way forward?

This week, the Supreme Court is hearing a divorce case that could have significant implications for the parties considering “forum shopping” for divorce and financial remedy proceedings.

Mr and Mrs Villiers married in 1994 and separated in 2012. The parties spent almost all of their married lives living in Scotland. Following the parties’ separation, Mrs Villiers moved to England with the parties’ daughter in 2013. Mrs Villiers subsequently issued a divorce petition in the English courts, which was later dismissed with her consent in favour of Mr Villiers’ writ of divorce, which was issued in Scotland in 2014.

The parties were unable to settle the matrimonial finances and in 2015, Mrs Villiers made an application in England under s.27 Matrimonial Causes Act 1973 seeking maintenance. Crucially, England and Scotland have different approaches to provision of maintenance to spouses.

Mr Villiers argued that the English court did not have jurisdiction to deal with his wife’s maintenance application. However, at first instance, Mrs Justice Parker said the English courts did have jurisdiction and made an order that Mr Villiers pay his wife £2,500 per month in interim maintenance, as well as £3,000 per month for legal funding. The Court of Appeal subsequently upheld the decision.

Over the course of a two-day hearing, the Supreme Court will consider whether the courts of England and Wales have the power to stay an application for maintenance pursuant to s.27 Matrimonial Causes Act 1973 on the grounds of forum non conveniens, when divorce proceedings are taking place in Scotland. They will also consider whether divorce proceedings and maintenance proceedings are ‘related actions’ pursuant to Article 13 of the Maintenance Regulation 2011.

Commenting on the case, Philip Hunter said, “The case is seen as a bell-weather for the court’s approach to matrimonial finances, namely gauging the court’s appetite as to whether they seek to in any way endorse the “Scottish approach”, namely in adopting a stricter approach to inherited, ring-fenced assets and the limiting of maintenance.

If you wish to discuss your divorce or matrimonial finances, or with help on the question of “should I divorce in England or Scotland?”, please contact us.

Philip is a Resolution member and formed part of the campaign to support no fault divorce proceedings. Philip is also contributor to the legal and national media on family law issues.

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