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When divorce and maintenance collide

16 May 16

How conflict can occur between cross-border jurisdictional rules in matrimonial cases, depending on the remedies sought, as a new decision highlights

by Scott McAlpine, John West

When it comes to the conflict rules for determining jurisdiction for divorce proceedings within the United Kingdom, the terms of sched 3 to the Domicile and Matrimonial Proceedings Act 1973 ought to be familiar territory, whereas when it comes to jurisdiction concerning maintenance it is the Maintenance Regulation (EC) No 4/2009 (“MR”) which requires to be considered. But what about a divorce which also involves maintenance?

In the first case of its kind, the High Court of Justice in England & Wales has recently issued a judgment which highlights the clash between the terms of the 1973 Act and the MR. The purpose of this short article is to consider the issues arising in, and from, the case of Re V (European Maintenance Regulation) [2016] EWHC 668 (Fam).

What is maintenance?

Whilst article 1 of the MR makes it clear that the Regulation applies to maintenance obligations arising from family relationships, parentage, marriage or affinity, “maintenance” itself is not defined. So what does it mean? It is self-evident that aliment would be included. But what about financial provision on divorce? As a result of the decisions of the European Court of Justice in Van den Boogaard v Laumen [1997] QB 759 and of Lord Brodie in AB v CD 2007 Fam LR 53, it is now clear that financial provision, whether in the form of periodical allowance or a capital sum, even where the award is justified only by s 9(1)(a) of the 1985 Act, is capable of being characterised as “maintenance”.

Intra-UK conflicts concerning jurisdiction

When a dispute arises between Scotland and England & Wales (“E&W”) as regards jurisdiction in a divorce action, the answer is found in the 1973 Act. In short, irrespective of which jurisdiction was first seised, the courts of the jurisdiction in which the parties last resided together, so long as one party remains habitually resident there, will take precedence for divorce. The other jurisdiction will be under a statutory obligation to mandatorily sist its proceedings so as to allow the divorce to proceed in the jurisdiction where the parties last lived together.

By contrast, jurisdiction in relation to maintenance, even where ancillary to a divorce action, must now be governed by the MR. Article 3 sets out the grounds of jurisdiction, which includes the courts for the place where the defender is habitually resident but also where the maintenance creditor is habitually resident. Unlike jurisdiction for divorce, the MR operates a strict lis pendens rule, meaning that the courts first seised shall take precedence.

The Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484) provide that the provisions of the MR apply intra-UK, so that each jurisdiction within the UK is regarded as a separate member state.

Re V (European Maintenance Regulation)

The first intra-UK case which draws into sharp focus this contrast in jurisdictional approaches for divorce and maintenance is Re V (European Maintenance Regulation) [2016] EWHC 668 (Fam).

The wife raised divorce proceedings seeking financial provision in England & Wales. The husband subsequently purported to raise divorce proceedings in Scotland seeking divorce only. The England & Wales proceedings were ultimately dismissed, apparently because the wife conceded jurisdiction for divorce in England & Wales, given the terms of the 1973 Act. However, in the meantime, the wife raised proceedings in England & Wales for interim maintenance (in terms of s 27 of the Matrimonial Causes Act 1973), on the basis that, as the maintenance creditor, she was habitually resident in England & Wales.

The husband argued that the courts in England & Wales had no jurisdiction to entertain the maintenance claim, on the basis that Scotland was the jurisdiction first seised by virtue of him raising divorce proceedings there.

The wife argued that the Scottish courts had not been seised in relation to the MR, as the issue of maintenance obligations had not been brought before them (the husband seeking divorce and expenses only in his initial writ). On the other hand, the issue of maintenance had been brought before the England & Wales courts.

In resolving the dispute between the parties, Mrs Justice Parker concluded that the mere raising of divorce proceedings, in the absence of a specific crave for maintenance, was insufficient to invoke the Scottish courts’ jurisdiction in terms of the MR. Maintenance obligations therefore were a matter for the court in England & Wales, which was first seised. She went on to make an interim award in favour of the wife.

Commentary

The different regimes for dealing with intra-UK conflicts of jurisdiction in terms of the 1973 Act and MR are thrown into sharp focus by this case. We now have the reality of bifurcated proceedings within the UK: cases where exclusive jurisdiction for maintenance obligations lies with one court while exclusive jurisdiction for the divorce and all other ancillary financial obligations rests with another.

It remains to be seen whether, in light of this decision, it will be possible for the wife to re-open the issue of divorce in England & Wales, or whether she will be forced to litigate the divorce in Scotland even where, by virtue of Mrs Justice Parker’s decision, the Scottish courts do not have jurisdiction to deal with questions of maintenance as between the parties. It must now be the case that the 1973 Act is on borrowed time.

Given the different ways both jurisdictions deal with financial provision on divorce generally, it is perhaps not surprising that one spouse may want to litigate in Scotland and the other in England & Wales. It is likely that intra-UK disputes will continue to arise. How they are ultimately resolved within the two separate statutory schemes could prove fertile ground for further litigation. What does seem clear however is that where it is sought to secure maintenance in either jurisdiction, it is essential that an application is made for some form of maintenance order rather than simply trying to rely on divorce proceedings alone. What is more, that application must be made swiftly: it is after all a race to seise jurisdiction.

Scott McAlpine, advocate, Westwater Advocates
John West, solicitor, SKO Family Law Specialists

 

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