There has been a lot of coverage in the press recently regarding the divorce of Mr and Mrs Villiers. It is a complex case, legally, which has involved many court hearings, both in England and Scotland. The case highlights the issues that can arise when a couple are able to issue divorce proceedings in more than one legal jurisdiction, in this case in England and in Scotland. It also highlights the fact that the law is open to interpretation by judges and therefore it is not always easy to predict the outcome of court proceedings and that a negotiated settlement is preferable where possible.
Partner Fiona Wood examines the issues.
The couple married in 1994, moved to Scotland in 1995 and lived there throughout their married life. They separated in 2012, with Mr Villiers remaining in Scotland and Mrs Villiers returning to live in England.
Issuing divorce proceedings
The couple then both issued divorce proceedings, Mr Villiers in Scotland and his wife in England. There were court hearings regarding which country should deal with the divorce. Mrs Villiers would receive a greater financial settlement if the divorce was dealt with by the English rather than the Scottish courts, so both were keen to divorce in their country of choice.
Both countries’ courts agreed that the divorce should be dealt with in Scotland, as that was where the couple had last lived together. However, whilst the divorce proceeded in Scotland, Mrs Villiers was able to apply in England for maintenance under s27 Matrimonial Causes Act 1973, as Mr Villiers’ application in Scotland did not include an application for spousal maintenance. S27 allows one spouse (where still married) to apply for maintenance if the other spouse has failed to provide them with reasonable maintenance. An order was made that Mr Villiers pay his wife maintenance, until their financial settlement was dealt with, of £2500 per month plus £3,000 per month to fund her legal costs. Mr Villiers appealed this decision.
EU law
The appeal went to the Supreme Court. Mr Villiers argued that it was not appropriate for a divorce to take place in one part of the UK, whilst the issue of maintenance is dealt with by another part. Much of the legal argument dealt with EU law, as the hearing took place before Brexit. The husband lost his appeal, with two Supreme Court Judges agreeing with him and three agreeing with his wife. The issue was not clear-cut.
There was a further hearing in England last month, where Mr Justice Mostyn concluded that Mr Villiers should not have to pay maintenance to his wife, due to Mr Villiers’ financial position. Mr Villiers is now hopeful that they will return to court in Scotland and finalise their divorce and financial settlement there.
Brexit
Now that Brexit has occurred, the law governing the issue of maintenance, which was considered by the Supreme Court, has changed in England as EU law is no longer relevant. Now the English court has the power to impose a stay of proceedings issued in England, if there are other proceedings concerning a marriage in another country, if it considers it is in the balance of fairness to do so. Had Brexit taken place earlier the outcome of the appeal to the Supreme Court may have been different. Certainly, Mr Justice Mostyn is of the view that the Scottish court should have dealt with the couple’s financial claims.
