This case concerned the question as to whether an English court could consider an application for maintenance under s.27 of the Matrimonial Proceedings Act 1973 where the divorce proceedings had been conducted in Scotland.
For the majority of their marriage, the parties lived in Scotland. Following their separation, the wife moved to England while the husband remained in Scotland. The wife issued a petition for divorce in England and the husband issued a writ for divorce in Scotland. As the parties had last lived together in Scotland, the divorce proceeded on the basis of the husband's writ, with the wife's petition being dismissed. She then applied to the English court for interim maintenance under s.27 of the Matrimonial Causes Act 1973. The husband argued that the English Court either did not have jurisdiction to hear her application or should not exercise its jurisdiction to do so. The matter was ultimately considered by the Supreme Court.
Lord Sales gave the lead judgment of the Supreme Court, with Lord Kerr and Lady Black concurring. Lord Wilson and Lady Hale, both of whom have a background in family law, dissented.
The four issues arising were:
- whether under s.27 an English court has jurisdiction to make any order for maintenance in a case with no international dimension;
- if it does, whether the relevant regulations permit an English court to stay proceedings on the grounds of forum non conveniens;
- if it does not, whether the removal of that discretion was ultra vires;
- if the court has jurisdiction under s.27, whether the husband's divorce proceedings in Scotland were "related proceedings" for the purposes of the terms of the Maintenance Regulation (Council Regulation (EC) No 4/2009) and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, such that maintenance should be determined by the same court as deals with the divorce.
The relevance of these technical arguments was that the law in England is considered significantly more generous to the financially weaker spouse (here, the wife) than in Scotland. The wife would receive a more generous award in England than if she had to bring her claim in Scotland.
The answers given by the Supreme Court to the questions above were a) yes, b) no, c) no and d) no. It is the last of those questions which caused the principal disagreement between the justices and which is likely to have most significant impact for family law. Lord Sales considered that the EU legislation governing jurisdiction in cross-border cases treats divorce (which relates to the parties' status) and maintenance separately. Given that the 2011 Regulations apply the EU regime to intra-UK cases, the same principle should apply. This is in line with the way that some EU jurisdictions treat divorce and maintenance, but ordinarily within the UK, whichever court is seized with the divorce proceedings will also deal with any financial applications. Lord Sales highlighted his view that the intention of the EU Regulation was to provide the financially weaker party with a choice of jurisdictions.
Melissa Lesson says: "It is interesting to note that the dissenting voices were those of long-time family law practitioners, Lord Wilson, supported by Lady Hale. Lord Wilson very much viewed the English and Scottish proceedings as 'related' actions, giving the English court the power to stay or decline the wife's application for maintenance. He would clearly have allowed the husband's appeal. He viewed the ultimate outcome of the case as an 'untrammelled licence' to spouses to go forum-shopping and concluded that it would prevent one Court in the UK declining to determine a wife's claim for maintenance, in circumstances where a Court in another part of the UK has already been seised and is competent and has the power to deal with the overall financial resolution of the case. It remains to be seen if his predictions will bear fruit, but coupled with the impact that Brexit will have on seising jurisdictions, we may well find ourselves litigating over forum in a way that has not been the case for a long time."