Divorce Tourism – spousal maintenance laws north and south of the Border

In an increasingly globalised world, it is more and more commonplace for disputes to arise in relation to where a divorce action ought to be raised and heard. The country in which a separated spouse decides to raise an action can have significant implications, particular for financial provision on separation and divorce.

As couples and families move between jurisdictions, or spend time apart and in different parts of the UK, or indeed the world, during their relationship or after it has broken down, it is not uncommon for the courts of two different countries to have jurisdiction to make a decision on the financial or childcare issues which arise on separation.

Scotland England Border Family Law Solicitor Divorce Separation Money Financial Provision Children

Intra-UK divorce jurisdiction – a case in point

The case of Villiers v Villiers, which is currently before the English courts, has thrown this fact into sharp focus.

Charles and Emma Villiers married in 1994 and settled with their family in a country estate in Dumbartonshire. They remained there until their separation in 2012. Upon separation, Mrs Villiers moved to England with her daughter, by then aged 22.

In July 2013, she raised a divorce action in England. In October 2014, Mr Villiers contested the jurisdiction of the English courts and raised a divorce action in Scotland. Mrs Villiers consented to the dismissal of her English divorce action, but raised a separate, standalone action for maintenance in England on the very same day. Mr Villiers challenged the jurisdiction of the English courts to hear the application for maintenance.

It is important to note that, notwithstanding Mrs Villiers' concession that her English divorce action should be dismissed, it would have been anyway, as the English courts would have been obliged to grant an obligatory stay of their proceedings in favour of the Scottish divorce action.

Even although the English divorce action was raised first in time, the crucial factor in intra-UK divorce jurisdiction disputes is where the couple last lived together before separation. In the Villiers' case, this was Scotland and so the Scottish action would be allowed to proceed.

In March 2016, the High Court in London found that Mr Villiers' Scottish divorce action did not exclude Mrs Villiers from raising a separation action for maintenance in England, as his divorce writ did not seek any orders in relation to financial support. It held that Mrs Villiers was 'habitually resident' in England and so the English courts did have jurisdiction in relation to maintenance, and awarded her £5,500 per month in respect of interim maintenance until the Scottish divorce could be finalised. The judge commented that she could see no reason why "divorce should not proceed in one jurisdiction and maintenance in another".

Mr Villiers is appealing that decision on the grounds that as the Scottish courts were already hearing the divorce action, the English courts should not have entered the fray to deal with maintenance. Mrs Villiers, on the other hand, is pursuing maintenance in the higher sum of £10,000 per month, on the basis that she and her daughter require that amount to live on, and her husband has inherited wealth which provides him with the resources to support her at that rate. The case will now be heard before the Court of Appeal.

Differences between Scotland and England for financial provision on separation and divorce

This case raises an important distinction between the laws of Scotland and England as they apply to financial provision on separation and divorce. English law is much more generous in terms of maintenance awards than that north of the Border.

In Scotland, payments in terms of spousal support or maintenance are generally (although not always) limited to a maximum period of three years following divorce, with a lesser payment period being more common. In England by contrast, spouses can be awarded maintenance to be paid for the rest of their lives. It is at least arguable that the English legislation which provides for the standalone action for maintenance to be raised, despite the Scottish courts having jurisdiction to hear the divorce, would enable the English courts to make orders for maintenance which would not expire until the death of one of the parties or the remarriage of the payee. This makes the impending appeal all the more important for clients and solicitors alike.

Divorce tourism?

Mr Villiers has accused his wife of 'divorce tourism' by choosing to move to England to raise an action for maintenance under a law from which she stands to gain substantially more in support. He has commented that if his wife is ultimately successful in her pursuit of support south of the Border, England will become "the maintenance capital of the United Kingdom" and could "face an invasion of divorcees from other home nations".

Solicitors and separating spouses will watch with interest as the Court of Appeal hears the case and makes its ruling. Their determination on the matter could have significant ramifications for divorce cases throughout the UK.

In the meantime, both separating couples and the Scottish solicitors acting for them must be aware of the risks of maintenance actions being raised in England, even when Scottish courts are the forum for the divorce.

Get in touch with our family team

At Harper Macleod, our Family Law solicitors are experienced in assisting clients with all aspects of divorce and separation.

If you would like to find out more and how we could help, please get in touch.