The UK Supreme Court has upheld a decision allowing a wife's maintenance application to proceed in England although the husband's divorce action was proceeding in Scotland – by a three to two majority.

Lord Sales, Lord Kerr and Lady Black agreed with the Court of Appeal in that Emma Villiers could seek an order for maintenance in England where this had not been covered in the Scottish action, rejecting an application by her husband Charles Villiers for the court to find that it had no jurisdiction, or should not exercise its jurisdiction. Lord Wilson and Lady Hale dissented, in a case heard last December just before Lady Hale retired as President of the court.

The issues related 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 sched 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011.

Lord Sales, with whom Lord Kerr agreed, said four issues arose: (1) whether under s 27 of the Matrimonial Causes Act 1973 an English court had jurisdiction to make any order for maintenance in a case with no international dimension; (2) if so, whether sched 6 to the 2011 Regulations allowed for an English court to retain its previous discretion to stay maintenance proceedings before it on the ground of forum non conveniens; (3) if not, whether the purported removal of that discretion was outside the scope of the Secretary of State’s powers in s 2(2) of the European Communities Act 1972; and (4) if not, whether the husband’s divorce proceeding in Scotland was a “related action” for the purposes of article 13 of the Maintenance Regulation and the corresponding provision in sched 6 and, accordingly, whether the English court should decline jurisdiction in respect of the wife’s claim for a maintenance order under s 27.

He considered that the European Union legislation governing jurisdiction in cross-border cases treated maintenance obligations and questions of marital status, including divorce, as separate matters for the purposes of jurisdiction. The husband submitted that s 27 could only apply if a case fell to be governed by both the Maintenance Regulation and by sched 6, which would have the effect of it only applying in inter-state cases, but s 27 referred to both the Maintenance Regulation and sched 6 only in the sense that together they cover the whole possible field of interstate cases and intra-state cases.

On the second issue, Lord Sales followed EU case law to hold that the scheme of the EU legislation was inconsistent with the courts of a member state retaining any discretionary power to stay proceedings on forum non conveniens grounds. This was particularly applicable to the Maintenance Regulation, which aimed to afford special protection to a maintenance creditor by giving him or her the right to choose jurisdiction, and which was replicated in domestic law for intra-state cases by sched 6.

On the third issue, the making of the 2011 Regulations was within the wide power to make subordinate legislation conferred on the Secretary of State by s 2(2) of the 1972 Act.

Finally, the husband’s Scottish divorce action was not a “related action” within article 13, and that article (and the corresponding provision in sched 6) did not permit the English court to decline jurisdiction. The Maintenance Regulation had to be considered in light of its fundamental object of conferring the right to choose jurisdiction on a maintenance creditor. “Actions” in article 13 referred primarily to maintenance claims to which the special regime in the Regulation applied; holding it to mean any legal proceedings would undermine its object. There was no relevant connection between the wife’s s 27 maintenance claim in England and the Scottish proceedings concerned with determining marriage status.

In a concurring judgment, Lady Black agreed with Lord Sales’s conclusion on article 13, despite the fact that it led to the potential fragmentation of the proceedings required to resolve financial affairs on divorce.

In his dissenting judgment, with which Lady Hale agreed, Lord Wilson viewed 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, commonsense approach to interpretation of article 13, and would have allowed the husband’s appeal on this ground and remitted the case to the Family Division to decide whether the power should be exercised.

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